Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions: (a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations. (b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters. (d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that: (i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made. (ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity; (iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby. (iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts; (v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations. (vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement; (vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company. (viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby; (ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus; (x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 2 contracts
Sources: Underwriting Agreement (Freshstart Venture Capital Corp), Underwriting Agreement (Freshstart Venture Capital Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & VeithCamhy, counsel to the C▇▇▇▇▇y▇▇▇▇ & ▇▇▇▇▇, LLP ("CKS"), counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all the requisite corporate power and authority, authority and has obtained any and all the necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar mattersmatters (the absence of which would have a material adverse effect on the Company), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Securities," and to the best knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Warrant Agreement, the Representative's Warrant Agreement, and as described in the Prospectus. The Securities, Registered Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and to the holders thereof have no rights best of rescission with respect theretosuch counsel's knowledge, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Registered Securities to be sold by the Company hereunder and under the Warrant Agreement and Representative's Warrant Agreement are not and will not not, to the best of such counsel's knowledge, be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities are in due and proper form. The Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Registered Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Registered Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or all liens and other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.encumbrances;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, therein as to which no opinion need be renderedren- dered) comply as to form in all material respects with the requirements of the Acts Act and the Rules Regulations. Such counsel shall state that such counsel has participated in conferences with officers and Regulations.
other representatives of the Company and the Representative and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration State- ment or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto); (vi) to the best of such counsel's knowledgeknowledge after reasonable investigation, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or this Agreement, the Warrant Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, financial or otherwisebusiness, or the earnings, position, prospectsaffairs, stockholders' equity, value, operationoperations, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agree- ment, the Warrant Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agree- ment, the Warrant Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, the corporate power and authority to enter into each of this Agreement, the Warrant Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for therein; and each of this Agreement, the Warrant Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Warrant Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution execution, delivery or delivery performance of this Agreement, the Warrant Agreement and of the Representative's Warrant, its performance hereunder and thereunderWarrant Agreement, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate of incorporation or by-laws of the Company, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under federal securities or Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Registered Securities pursuant to the Prospectus Prospectus, and the Registration Statement, the performance of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby, except such as have been obtained under the Securities Act and the Regulations;
(ix) to the best knowledge of such counsel's knowledge, the properties and business of the Company conform to the description thereof contained except as disclosed in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any material term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be is bound or to which the property or assets (tangible or intangible) of any of the Company iis subject; and the Company is not in violation of any term or provision of its certificate of incorporation or by-laws, as amend- ed, and to the best of such counsel's knowledge after reasonable investigation, not in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation which would have a material adverse effect on the Company;
(x) the statements in the Prospectus under "Dividend Policy" and "Description of
Appears in 2 contracts
Sources: Underwriting Agreement (Casull Arms Corp), Underwriting Agreement (Casull Arms Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholders made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m., New York time, on the first full business day next following the date of this Agreement hereof or such later date and time as shall be have been consented to in writing by the RepresentativeUnderwriters. If required, andthe Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Rules and Regulations. If required, at Closing Date and each Option Closing Date, if any, no any amendment or supplement to the Prospectus shall have been filed in accordance with Rule 424(c) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Selling Stockholders, or the Underwriters, shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Underwriters and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegistration Statement, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Underwriters shall not have advised the Company that or the Selling Stockholders that, in the opinion of the Underwriters or Underwriters' Counsel, (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Prospectus, or any amendment or supplement thereto, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and request. Underwriters' Counsel shall have received from the Company and the Selling Stockholders such papers and information as they may request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, or covenants of the Company or the Selling Stockholders contained herein.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇ & ▇▇▇▇▇▇▇▇ P.C., dated counsel to the Company, an opinion, on or prior to the date Rights certificates and Prospectuses are first mailed to Safeguard Shareholders and on the Closing Date, addressed to dated the Underwriters respective dates thereof and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the The Company (A) has been and each of its subsidiaries are corporations duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of their respective jurisdictions of organization and are duly qualified to transact business as foreign corporations and are in good standing in each jurisdiction in which the Company has represented to such counsel that they conduct business;
(ii) The Company and each of its jurisdiction, and (B) has subsidiaries have all requisite corporate power and authorityauthority necessary or required to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus;
(iii) The Company has all requisite power and authority (corporate and other) to enter into this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement and to consummate the transactions provided for herein and therein; and this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement have each been duly authorized, executed and delivered by the Company. Each of this Agreement, assuming due authorization, execution and delivery by the Underwriters and the Selling Stockholders, and each of the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other than the Company, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or equity, and except as rights to indemnity and contribution hereunder may be limited by applicable law, statutory duties or public policy (provided that as of the first date of the opinion only, such opinion need not express any opinion set forth above with respect to the Other Purchaser Standby Purchase Agreements that have not theretofore been executed and delivered). The Company's execution and delivery of this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, its performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby do not and will not 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 liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or equities of any kind whatsoever upon, any right, property or asset (tangible or intangible) of the Company or any of its subsidiaries pursuant to the terms of (A) the charter or bylaws, each as amended through the date of the opinion, of the Company and each of its subsidiaries, (B) any material lease, permit, license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which any of them is or may be bound or to which any of their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, except that such counsel need not express an opinion with respect to any violation based upon any covenant of a financial or numerical nature or that requires arithmetic computation and such counsel has obtained not otherwise known of or had reason to expect the occurrence of such default, or (C) to the knowledge of Company counsel, any and all authorizationsstatute, approvalsrule, ordersregulation, licensesjudgment, certificatesdecree or order applicable to the Company or any of its subsidiaries or any of their respective activities or properties adopted or issued by an arbitrator, franchises and permits of and from all court, regulatory body or administrative agency or other governmental agency or regulatory officials and bodies body (including, without limitation, including those having jurisdiction over environmental or similar matters), materially necessary to own domestic or lease its properties and conduct its business as described in the Prospectus; foreign, having jurisdiction over the Company is not qualified or any of its subsidiaries or any of their respective activities or properties (other than such as a foreign corporation may be required under state securities or "Blue Sky" laws and such as may be required by the by-laws and rules of the NASD in any jurisdiction connection with the purchase and distribution of the Shares by the Underwriters);
(to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorizationiv) No consent, approval, order, license, certificate, franchiseauthorization or order of, or permit whichfiling with, singly any governmental agency or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", andbody or, to such counsel's knowledge, after due inquiryany court is required in connection with the issuance of the shares of Class A Common Stock to be sold by the Company, the Company's performance of its obligations hereunder, the Offering, or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect. Upon the effectiveness of the Registration Statement, the Class A Common Stock will be registered pursuant to Section 12(g) of the Exchange Act, and will be included in the Nasdaq National Market;
(v) At the date or dates indicated in the Prospectus, the authorized, issued and outstanding capital stock of the Company was as set forth therein, and conformed as to legal matters, to the extent that it constitutes matters of law or legal conclusions, to the description thereof contained therein under the captions "CAPITALIZATION" and "DESCRIPTION OF CAPITAL STOCK." All of the issued shares of Common Stock of the Company (including the Shares sold by the Selling Stockholders) have been duly authorized and validly issued, and are fully paid and non-assessable; the holders thereof are not subject to personal liabilities solely by reason of holding such shares; and none of such shares have been issued in violation of the preemptive rights of any security holders of the Company known to Company counsel. The Shares to be sold by the Company have been duly authorized and, when paid for in accordance herewith, will be validly issued, fully paid and non- assessable, and with no personal liability resulting solely from the ownership thereof. Upon the issuance and delivery pursuant to this Agreement of the Shares to be sold by the Company to the Underwriters, assuming the Underwriters do not have knowledge of any Adverse Claim, the Underwriters will acquire good and marketable title to such Shares free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or like equities of any kind whatsoever. Except as described in the Prospectus, there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party or of which it has knowledge, and the Shares to be sold by the Company are not subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Except as described in the Prospectus with respect to stock options (and all other securities issued or shares issuable upon exercise thereof) that may be registered by the CompanyCompany in a registration statement on Form S-8, conform in all material respects to all statements with respect thereto contained in no holders of any securities of the Registration Statement and Company or of any options, warrants or other convertible or exchangeable securities of the Prospectus. All issued and outstanding Company which are exercisable for or convertible or exchangeable for securities of the Company have the right (which has not been duly authorized and validly waived) to include any securities issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of Registration Statement or any registration statement to be filed by the Company or, within the period commencing on the date the Registration Statement is declared effective by the Commission and ending 180 days after the Expiration Date or to require the Company to file a registration statement under the Act during such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with period. Based on the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform form of specimen certificate filed as an exhibit to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationRegistration Statement, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities Shares are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivvi) the The Registration Statement is has become effective under the Acts, and, if applicable, Act. Any required filing of all pricing information the Prospectus pursuant to Rule 424(b) and 430A(a)(3) of the Rules and Regulations has been timely made in accordance with the appropriate form under Rule 430A, and, to time period required thereby. To such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under threatened, by the ActsCommission;
(vvii) each of At the Preliminary Prospectustime the Registration Statement was declared effective by the Commission, the Registration Statement, Statement and the Prospectus and any amendments amendment or supplements supplement thereto (other than the financial statements statements, and notes thereto, the financial schedules, and the other financial and statistical data included thereinin the Registration Statement or the Prospectus or omitted therefrom, as to which such counsel need express no opinion need be renderedopinion) comply complied as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(viviii) Such counsel has reviewed all contracts and other documents referred to in the best Registration Statement and the Prospectus, and the summaries of and other disclosures regarding such contracts and other documents included in the Registration Statement and the Prospectus fairly present the information required to be shown with respect thereto. To such counsel's knowledge, (A) there are no agreements, contracts or other documents of a character required by to be filed as exhibits to the Acts Registration Statement or required to be described in the Registration Statement and or the Prospectus and that were not filed or disclosed as exhibits to the Registration Statement other than those described in the Registration Statement required;
(or required to be filed under the Exchange Act if upon ix) To such filing they would be incorporatedcounsel's knowledge, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened or contemplated against the Company Company, or involving the properties or business of the Company, any action, arbitration, suit, proceeding, inquiry, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, including those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against that (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1A) is required to be disclosed in the Registration Statement which and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed, (2B) questions the validity of the capital stock of the Company or the validity or enforceability of this Agreement or Agreement, (C) questions the Representative's Warrant or validity of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; this Agreement, or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect effect the present or prospective ability of the Company to perform its obligations under this Agreement or which result in any manner draws into question the validity or enforceability of this Agreementa Material Adverse Effect;
(viix) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act, nor, by receipt of the proceeds from its sale by it of the Shares pursuant to this Agreement, will the Company has full legal right, power become or be deemed to be an "investment company" under such Act;
(xi) No transfer taxes are required to be paid in connection with the sale and authority delivery of the Class A Common Stock by the Company to enter into this Agreement the Underwriters hereunder;
(xii) The certificates evidencing the Rights to be distributed to the Safeguard Shareholders and the Representative's Warrant, subject as shares of Class A Common Stock to be delivered hereunder are in due and proper form under Delaware law; and
(xiii) All of the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has Rights have been duly authorizedauthorized and validly issued, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to when issued and distributed as set forth in the Representative's WarrantProspectus, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, will be legally issued and valid and binding agreement obligations of the Company enforceable against having the rights summarized in the Prospectus; and none of such Rights will have been issued in violation of the preemptive rights of any security holders of the Company in accordance with its terms (except arising as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium a matter of law or other laws of general application relating under or pursuant to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery Certificate of this Agreement and of Incorporation, as amended, the RepresentativeCompany's WarrantBy- Laws, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinas amended, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subjectbound. In addition, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable such opinion shall contain statements substantially to the Company following effect: In the course of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the preparation by the Company or any and its counsel of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to , such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision counsel attended conferences with certain of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company it
Appears in 2 contracts
Sources: Standby Underwriting Agreement (Diamond Technology Partners Inc), Standby Underwriting Agreement (Diamond Technology Partners Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be to purchase and pay for (i) the Firm Securities that they have respectively agreed to purchase pursuant to this Agreement (and any Option Securities as to which the option granted in Section 2 has been exercised and the Date of Delivery determined by you is the same as the Closing Time) at the Closing Time and (ii) the Option Securities at the Date of Delivery, are subject to the continuing accuracy of the representations and warranties and to compliance with the agreements of the Company contained herein as of the Closing Time or the Date of Delivery, as the case may be, and to the accuracy of the representations and warranties of the Company herein as contained in certificates of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers any officer of the Company made delivered pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Time has not been declared effective by the Commission prior to the time of execution hereof, the Registration Statement shall have become effective not later than 12:00 p.m.10:00 a.m. (Louisville, New York Kentucky time, ) on the first business date following the time of execution of this Agreement Agreement, or at such later time and date and time as shall be consented you may agree to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no writing. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of 430A, a Prospectus containing the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A Information shall have been transmitted to filed with the Commission for filing pursuant to in accordance with Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, 424(b) (or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations430A).
(b) The Representative At the Closing Time, you shall not have advised received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company that Company, dated as of the Closing Time, in form and substance satisfactory to counsel for the Underwriters.
(c) At the Closing Time, you shall have received an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PLLC, counsel for the Underwriters, dated as of the Closing Time, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass on such matters.
(d) At the Closing Time, (i) the Registration Statement and the Prospectus, as they may then be amended or any amendment theretosupplemented, contains shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and in all material respects shall conform to the requirements of the 1933 Act and the 1933 Act Regulations; the Company shall have complied in all material respects with Rule 430A (if it shall have elected to rely thereon), the Registration Statement, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that misleading and the Prospectus, as it may then be amended or any supplement theretosupplemented, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
; (cii) On or prior to there shall not have been, since the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization respective dates as of the Company, the validity of the Securities, which information is given in the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or change in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business assets, results of operations or assets condition (financial or otherwise) of the Company. The disclosures Company and its subsidiaries, taken as a whole, whether or not arising in the Registration Statement concerning the effects ordinary course of federalbusiness, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization than as set forth in the Prospectus, and any amendment (iii) no action, suit or supplement thereto, under "Capitalization", andproceeding at law or in equity shall be pending or, to such counselthe best of the Company's knowledge, after due inquiry, threatened against the Company is not a party that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the best knowledge of the Company, threatened against the Company before or bound by any instrumentfederal, agreement state or other arrangement providing for it to issue any capital stockcommission, rightsboard or administrative agency wherein an unfavorable decision, warrantsruling or finding could materially adversely affect the business, options prospects, assets, results of operations or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole, other securities, except for this Agreement and than as described set forth in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under Company shall have complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the ActsClosing Time, andand (v) the representations and warranties of the Company set forth in Section 1 shall be accurate as though expressly made at and as of the Closing Time. At the Closing Time, if applicable, filing you shall have received a certificate executed by the President and Chief Financial Officer of all pricing information has been timely made in the appropriate form under Rule 430A, andCompany dated as of the Closing Time, to such counsel's effect and with respect to the following additional matters: (A) to the best of their knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus has been issued issued, and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, threatened or contemplated under the Acts;
1933 Act; and (vB) each they have reviewed the Registration Statement and the Prospectus, when the Registration Statement became effective and at all times subsequent thereto up to the delivery of the Preliminary Prospectussuch certificate, the Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (other than the financial contained all statements and other financial information required to be included therein or necessary to make the statements therein not misleading and statistical data neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto included thereinany untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, as to which no opinion need be rendered) comply as to form in all material respects with and, since the requirements effective date of the Acts and the Rules and RegulationsRegistration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus that has not been so set forth.
(vie) On the date of this Agreement and at the Closing Time and the Date of Delivery, the Underwriters shall have received from Deloitte & Touche LLP a letter, dated the date of this Agreement and the Closing Time and the Date of Delivery, respectively, in form and substance satisfactory to the best Underwriters.
(f) On the date of this Agreement and at the Closing Time and the Date of Delivery, the Underwriters shall have received from PricewaterhouseCoopers LLP a letter, dated the date of this Agreement and the Closing Time and the Date of Delivery, respectively, in form and substance satisfactory to the Underwriters.
(g) At the Closing Time, you have received a duly executed counterpart of the Indenture.
(h) At the Closing Time, counsel for the Underwriters shall have been furnished with all such counsel's knowledgedocuments, (Acertificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 5(c) there are no agreementsand in order to evidence the accuracy and completeness of any of the representations, contracts warranties or other documents required statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Acts Company at or prior to be described the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement and the authorization and form of this Agreement, the Indenture, the Registration Statement and the Prospectus shall be reasonably satisfactory in form and filed substance to you and to counsel for the Underwriters. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as exhibits you shall reasonably request.
(i) The NASD, upon review of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Registration Statement other than those described Underwriters' participation in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;.
(viij) the The Company has full legal rightshall have filed with Nasdaq, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant a Notification Form: Listing of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, Additional Shares with respect to the Representative's Warrant, shares of Common Stock issuable upon conversion of the receipt Securities.
(k) The Company shall have obtained and delivered to the Underwriters executed copies of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement from each of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery directors and executive officers and from each person who, on the date of this Agreement and Agreement, owns of record or beneficially in excess of 5% of the RepresentativeCompany's Warrantoutstanding Common Stock, its performance hereunder substantially to the effect set forth in Subsection 3(h) hereof in form and thereunder, its consummation of substance reasonably satisfactory to the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of Underwriters. If any of the terms or provisions ofconditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or this Agreement may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable terminated by you on notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any arbitratorparty to any other party, courtexcept as provided in Section 4. Notwithstanding any such termination, regulatory body or administrative agency or the provisions of Section 6 shall remain in effect. The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the satisfaction on and as of any Date of Delivery for Option Securities of the conditions set forth in this Section 5, except that, if any Date of Delivery for Option Securities is other governmental agency or body than the Closing Time, the certificates, opinions and letters referred to in paragraphs (including, without limitation, those having jurisdiction over environmental or similar mattersb), domestic or foreign(c), having jurisdiction over (d), (e), (f) and (g) shall be revised to reflect the Company or any sale of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the CompanyOption Securities.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 2 contracts
Sources: Underwriting Agreement (Compudyne Corp), Underwriting Agreement (Compudyne Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholders made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m., New York time, on the first full business day next following the date of this Agreement hereof or such later date and time as shall be have been consented to in writing by the RepresentativeUnderwriters. If required, andthe Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Rules and Regulations. If required, at Closing Date and each Option Closing Date, if any, no any amendment or supplement to the Prospectus shall have been filed in accordance with Rule 424(c) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Selling Stockholders or the Underwriters, shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Underwriters and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegistration Statement, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Underwriters shall not have advised the Company that or any Selling Stockholders that, in the opinion of the Underwriters or Underwriters' Counsel, (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Prospectus, or any amendment or supplement thereto, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and request. Underwriters' Counsel shall have received from the Company and the Selling Stockholders such papers and information as they may request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, or covenants of the Company or any Selling Stockholder contained herein.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇, dated ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, an opinion, on or prior to the date Rights certificates and Prospectuses are first mailed to Safeguard Shareholders and on the Closing Date, addressed to dated the Underwriters respective dates thereof and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the The Company (A) has been is duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of its jurisdiction, jurisdiction of organization and is duly qualified to transact business as foreign corporations and is in good standing in each jurisdiction in which the Company has represented to such counsel that they conduct business;
(Bii) The Company has all requisite corporate power and authorityauthority necessary or required to own or lease their respective properties and conduct its businesses as described in the Registration Statement and the Prospectus;
(iii) The Company has all requisite power and authority (corporate and other) to enter into this Agreement, the Rights Agent Agreement and the Other Purchasers Standby Purchase Agreements and to consummate the transactions provided for herein and therein; and this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement have each been duly authorized, executed and delivered by the Company. Each of this Agreement, assuming due authorization, execution and delivery by the Underwriters, and each of the Other Purchasers Standby Purchase Agreements, and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other than the Company, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or equity, and except as rights to indemnity and contribution hereunder may be limited by applicable law, statutory duties or public policy (provided that as of the first date of the opinion only, such opinion need not express any opinion set forth above with respect to the Other Purchaser Standby Purchase Agreements that have not theretofore been executed and delivered). The Company's execution and delivery of this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, its performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby do not and will not 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 liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or equities of any kind whatsoever upon, any right, property or asset (tangible or intangible) of the Company pursuant to the terms of (A) the charter or bylaws, each as amended through the date of the opinion, of the Company, (B) any material lease, permit, license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, except that such counsel need not express an opinion with respect to any violation based upon any covenant of a financial or numerical nature or that requires arithmetic computation and such counsel has obtained not otherwise known of or had reason to expect the occurrence of such default, or (C) to the knowledge of Company counsel, any and all authorizationsstatute, approvalsrule, ordersregulation, licensesjudgment, certificatesdecree or order applicable to the Company or any of its activities or properties adopted or issued by an arbitrator, franchises and permits of and from all court, regulatory body or administrative agency or other governmental agency or regulatory officials and bodies body (including, without limitation, including those having jurisdiction over environmental or similar matters), materially necessary to own domestic or lease its properties and conduct its business as described in the Prospectus; foreign, having jurisdiction over the Company is not qualified or any of its respective activities or properties (other than such as a foreign corporation may be required under state securities or "Blue Sky" laws and such as may be required by the by-laws and rules of the NASD in any jurisdiction connection with the purchase and distribution of the Shares by the Underwriters);
(to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorizationiv) No consent, approval, order, license, certificate, franchiseauthorization or order of, or permit whichfiling with, singly any governmental agency or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", andbody or, to such counsel's knowledge, after due inquiryany court is required in connection with the issuance of the shares of Common Stock to be sold by the Company, the Company's performance of its obligations hereunder, the Offering, or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect. Upon the effectiveness of the Registration Statement, the Common Stock will be registered pursuant to Section 12(g) of the Exchange Act, and will be included in the Nasdaq National Market;
(v) At the date or dates indicated in the Prospectus, the authorized, issued and outstanding capital stock of the Company was as set forth therein, and conformed as to legal matters, to the extent that it constitutes matters of law or legal conclusions, to the description thereof contained therein under the captions "CAPITALIZATION" and "DESCRIPTION OF CAPITAL STOCK." All of the issued shares of Common Stock of the Company (including the Shares sold by the Selling Stockholders) have been duly authorized and validly issued, and are fully paid and non-assessable; the holders thereof are not subject to personal liabilities solely by reason of holding such shares; and none of such shares have been issued in violation of the preemptive rights of any security holders of the Company known to Company counsel. The Shares to be sold by the Company have been duly authorized and, when paid for in accordance herewith, will be validly issued, fully paid and non-assessable, and with no personal liability resulting solely from the ownership thereof. Upon the issuance and delivery pursuant to this Agreement of the Shares to be sold by the Company to the Underwriters, assuming the Underwriters do not have knowledge of any Adverse Claim, the Underwriters will acquire good and marketable title to such Shares free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or like equities of any kind whatsoever. Except as described in the Prospectus, there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party or of which it has knowledge, and the Shares to be sold by the Company are not subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The SecuritiesExcept as described in the Prospectus with respect to stock options (and shares issuable upon exercise thereof) that may be registered by the Company in a registration statement on Form S-8, and all no holder of any securities of the Company or of any options, warrants or other convertible or exchangeable securities of the Company which are exercisable for or convertible or exchangeable for securities of the Company has any right (which has not been waived) to include any securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained Company in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of or any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities registration statement to be sold filed by the Company hereunder are not within the period commencing on the date the Registration Statement is declared effective by the Commission and will not be subject ending 180 days after the Expiration Date or to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of require the Company or, to file a registration statement under the Act during such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with period. Based on the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform form of specimen certificate filed as an exhibit to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationRegistration Statement, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities Shares are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivvi) the The Registration Statement is has become effective under the Acts, and, if applicable, Act. Any required filing of all pricing information the Prospectus pursuant to Rule 424(b) and 430A(a)(3) of the Rules and Regulations has been timely made in accordance with the appropriate form under Rule 430A, and, to time period required thereby. To such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under threatened, by the ActsCommission;
(vvii) each of At the Preliminary Prospectustime the Registration Statement was declared effective by the Commission, the Registration Statement, Statement and the Prospectus and any amendments amendment or supplements supplement thereto (other than the financial statements statements, and notes thereto, the financial schedules, and the other financial and statistical data included thereinin the Registration Statement or the Prospectus or omitted therefrom, as to which such counsel need express no opinion need be renderedopinion) comply complied as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(viviii) Such counsel has reviewed all contracts and other documents referred to in the best Registration Statement and the Prospectus, and the summaries of and other disclosures regarding such contracts and other documents included in the Registration Statement and the Prospectus fairly present the information required to be shown with respect thereto. To such counsel's knowledge, (A) there are no agreements, contracts or other documents of a character required by to be filed as exhibits to the Acts Registration Statement or required to be described in the Registration Statement and or the Prospectus and that were not filed or disclosed as exhibits to the Registration Statement other than those described required;
(ix) Except as disclosed in the Registration Statement (or required Prospectus, to be filed under the Exchange Act if upon such filing they would be incorporatedcounsel's knowledge, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened or contemplated against the Company Company, or involving the properties or business of the Company, any action, arbitration, suit, proceeding, inquiry, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, including those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against that (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1A) is required to be disclosed in the Registration Statement which and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed, (2B) questions the validity of the capital stock of the Company or the validity or enforceability of this Agreement or Agreement, (C) questions the Representative's Warrant or validity of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; this Agreement, or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect effect the present or prospective ability of the Company to perform its obligations under this Agreement or which result in any manner draws into question the validity or enforceability of this Agreementa Material Adverse Effect;
(viix) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act, nor, by receipt of the proceeds from its sale by it of the Shares pursuant to this Agreement, will the Company has full legal right, power become or be deemed to be an "investment company" under such Act;
(xi) No transfer taxes are required to be paid in connection with the sale and authority delivery of the Common Stock by the Company to enter into this Agreement the Underwriters hereunder;
(xii) The certificates evidencing the Rights to be distributed to the Safeguard Shareholders and the Representative's Warrant, subject as shares of Common Stock to be delivered hereunder are in due and proper form under Delaware law; and
(xiii) All of the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has Rights have been duly authorizedauthorized and validly issued, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to when issued and distributed as set forth in the Representative's WarrantProspectus, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, will be legally issued and valid and binding agreement obligations of the Company enforceable against having the rights summarized in the Prospectus; and none of such Rights will have been issued in violation of the preemptive rights of any security holders of the Company in accordance with its terms (except arising as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium a matter of law or other laws of general application relating under or pursuant to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery Certificate of this Agreement and of Incorporation, as amended, the RepresentativeCompany's WarrantBy-Laws, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinas amended, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subjectbound. In addition, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable such opinion shall contain statements substantially to the Company following effect: In the course of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the preparation by the Company or any and its counsel of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to , such counsel's knowledgecounsel attended conferences with certain of the officers of, and the independent public accountants for, the Company is not in breach ofCompany, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to at which the Company is a party or Registration Statement and the Prospectus were discussed (some of which were attended by which any representatives of the Company may be bound or to which Underwriters). Between the property or assets (tangible or intangible) date of any effectiveness of the Company iRegistration Statement and the Closing Date,
Appears in 2 contracts
Sources: Standby Underwriting Agreement (Chromavision Medical Systems Inc), Standby Underwriting Agreement (Chromavision Medical Systems Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or and each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or and each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder; and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriter, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriter shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under in which they were made not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Underwriter's opinion, is material, or omits to state a fact which, in the Underwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriter shall have received from Underwriters' Counsel, Underwriter's Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriter may request and Underwriters' Underwriter's Counsel shall have received such papers and information as they may request in order to enable them to pass upon such matters.
(d) At On the Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the CTroop ▇▇▇▇▇y▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and Underwriter, in form and substance satisfactory to Underwriters' Underwriter's Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, authority (corporate and other) and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the . The Company is not qualified as a and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates, franchises and permits obtained by it from governmental or regulatory officials and agencies and all federal, state, local and foreign corporation in any jurisdiction (laws, rules and regulations to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)it is subject; to such counsel's knowledgeand, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, franchise or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, stockholders' equity, value, operations, properties, business or assets results of operations of the Company. The disclosures disclosure in the Registration Statement concerning the effects of federal, state state, local and local foreign laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading therein, in light of the circumstances in which they were made., not misleading;
(ii) to such counsel's knowledgeExcept as set forth in the Prospectus, the Company does not own own, directly or indirectly, an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization and as set forth in the Prospectus under "Capitalization," and except as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the ProspectusUnderwriter's Warrant Agreement. The Securities, Securities and all other securities issued or issuable by the CompanyCompany conform, conform or when issued and paid for, will conform, in all material respects to all statements with respect thereto the descriptions thereof contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, thereto and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to the best of such counsel's knowledge, knowledge any agreement, document or instrumentsimilar contractual right granted by the Company. The Securities to be sold by the Company hereunder and under the Underwriter's Warrant Agreement are not and will not be subject to any statutory preemptive or or, to the best of such counsel's knowledge other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrantand thereof, will be validly issued, fully paid and non-assessable and conform to the description descriptions thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Underwriter's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the RepresentativeUnderwriter's Warrant Agreement of the Securities to be sold by the CompanyCompany hereunder and thereunder, the Underwriters and the holders of the Representative's Warrant, as the case may be, Underwriter will acquire good and marketable title to the Securities such Securities, free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever (except those arising out of acts or claims asserted against the Underwriters Company or any affiliate (within the holders meaning of the Representative's Warrant). No transfer tax is payable by or on behalf Rules and Regulations) of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or the Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or pending, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and or required to be filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of agreements, contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, arbitration, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, those having jurisdiction over pertaining to environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of of, the Company which (1i) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), or (2ii) questions the validity of the capital stock of the Company or of this Agreement, the Underwriter's Warrant Agreement or the Representative's Warrant Consulting Agreement or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or court, arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the CompanyCompany taken as a whole, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Underwriter's Warrant Agreement or the Consulting Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Underwriter's Warrant Agreement or the Consulting Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement Agreement, the Underwriter's Warrant Agreement, and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Consulting Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement Agreement, the Underwriter's Warrant Agreement, and the Representative's Warrant each Consulting Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Underwriter's Warrant Agreement and the Representative WarrantConsulting Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company Company, enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights obligations to indemnity indemnify or contribution contribute to losses may be limited by applicable law), and neither . None of the Company's execution or delivery of this Agreement and of Agreement, the RepresentativeUnderwriter's WarrantWarrant Agreement, or the Consulting Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinherein and therein, or the conduct of its business as described in the Registration Statement, Statement and the Prospectus, Prospectus and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate of incorporation or by-laws bylaws of the Company, (B) any license, contract, indenture, mortgage, lease, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which it either is or may be bound or to which any of its the properties or assets (tangible or intangible) is of either are or may be subject, or any indebtedness, or (C) any statute, statute applicable to the Company or (D) any judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its their activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any arbitrator, court, regulatory body, administrative agency, government agency or other body body, domestic or foreign (other than such as may be required under Blue Sky "blue sky" laws, as to which no opinion need be rendered) ), is required in connection with the issuance of the Securities pursuant to the Prospectus and Prospectus, the Registration Statement, this Agreement, the Underwriter's Warrant Agreement, or the performance of this Agreement, the Underwriter's Warrant Agreement, and the Consulting Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus; and the Company has good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in the Prospectus to be owned or leased by it, in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever, other than those referred to in the Prospectus and liens for taxes not yet due and payable;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreementlease, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ievide
Appears in 2 contracts
Sources: Underwriting Agreement (Cumetrix Data Systems Corp), Underwriting Agreement (Cumetrix Data Systems Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' reasonable opinion, is material, or omits to state a fact which, in the Representative's Representatives' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ ▇▇▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇"), counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Securities," and to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Representatives' Warrant Agreement, and as described in the Prospectus. The Securities, Registered Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Registered Securities to be sold by the Company hereunder and under the Representatives' Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities are in due and proper form. The Representatives' Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Registered Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the holders of the Representative's WarrantRepresentatives, as the case may berespectively, will acquire good and marketable title to the Registered Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or all liens and other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.encumbrances;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules Regulations. Such counsel shall state that such counsel has participated in conferences with officers and Regulations.other representatives of the Company and the Representatives and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto);
(vi) to the best of such counsel's knowledgeknowledge after reasonable investigation, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or this Agreement Agreement, or the Representative's Representatives' Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, financial or otherwisebusiness, or the earnings, position, prospectsaffairs, stockholders' equity, value, operationoperations, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representatives' Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representatives' Warrant Agreement;
(vii) the Company has full legal right, the corporate power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Representatives' Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for therein; and each of this Agreement and the Representative's Representatives' Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentatives' Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution execution, delivery or delivery performance of this Agreement and of the Representative's Warrant, its performance hereunder and thereunderRepresentatives' Warrant Agreement, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under federal securities or Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Registered Securities pursuant to the Prospectus Prospectus, and the Registration Statement, the performance of this Agreement and the Representatives' Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to the best of such counsel's knowledgeknowledge after reasonable investigation, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to the best knowledge of such counsel's knowledge, and except as disclosed in Registration Statement and the Prospectus, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be is bound or to which the property or assets (tangible or intangible) of any of the Company iis subject; and the Company is not in violation of any term or provision of its articles of incorporation or by-laws, as amended, and to the best of such counsel's knowledge after reasonable investigation, not in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(xi) the statements in the Prospectus under "Dividend Policy," "Description of Securities," and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they re
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of each Underwriter to purchase and pay for the Underwriters Offered Shares that it has agreed to purchase hereunder shall be on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on any Option Closing Date, is subject at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy of the respective representations and warranties of the Company herein as and of the date hereof and as of the Closing Date and each Option Closing DateSelling Stockholders set forth herein, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as by the Selling Stockholders of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:30 p.m., New York time, on the date of this Agreement Agreement, or at such later time or on such later date and time as shall be consented the Representatives may agree to in writing writing; if required by the RepresentativeRegulations, and, at the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations and in accordance with subsection (a) of Section 5 hereof; on or prior to the Closing Date and each or any Option Closing Date, if anyas the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement or the sale of any of the Shares shall have been issued under the Act or any state securities law and no proceedings for that purpose shall have been instituted initiated or shall be pending or, to the Representatives' knowledge or the knowledge of the Company, shall be contemplated by the Commission SEC and any request on the part of the Commission SEC for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters' Counsel. If .
(b) All corporate proceedings and other matters incident to the Company has elected to rely upon Rule 430A authorization, form and validity of the Rules and Regulationsthis Agreement, the price of the Shares and any price-related information previously omitted from the effective form of the Registration Statement pursuant and the Prospectus, and all other legal matters relating to such Rule 430A this Agreement and the transactions contemplated hereby, shall have been transmitted be satisfactory in all respects to counsel to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date Underwriters; the Company shall have provided evidence satisfactory furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; and the Representatives shall have received from the Underwriters' counsel, Duane, Morris & Heckscher LLP, a favorable opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representative Representatives individually and as the Representatives of such timely filingthe several Underwriters with respect to the due authorization, or a post-execution and delivery of this Agreement, that the issuance and sale of the Shares have been duly authorized by the Company and the Selling Stockholders, that when the Offered Shares have been duly delivered against payment therefor as contemplated by this Agreement, they will be validly issued, fully paid and nonassessable and that the Registration Statement has become effective amendment providing such information under the Act.
(c) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(d) The Representatives shall have received copies of the lock- up agreements described in subsection (x) of Section 5(a) and subsection (i) of Section 5(b) signed by those persons set forth on Schedule II annexed hereto.
(e) On the Closing Date and any Option Closing Date, there shall have been promptly filed delivered to the Representatives a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company ("Company Counsel"), dated as of each such date and declared effective addressed to the Representatives individually and as the Representatives of the several Underwriters to the effect that:
(i) The Company has been incorporated and is validly existing and in good standing under the laws of Maryland, with corporate power and authority to own or lease and operate its properties and to conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement. To the knowledge of Company Counsel, the Company does not own any stock or other equity interest in any corporation, partnership or other entity other than the Subsidiaries.
(ii) Each Subsidiary has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The execution, delivery and performance of this Agreement by the Company does not and will not, with or without the giving of notice or the lapse of time, or both, (A) conflict with any terms or provisions of the Charter or By-laws, as amended to the date hereof of each of the Company or the Subsidiaries; (B) to Company Counsel's knowledge result in a material breach of, or constitute a default under, result in the termination or modification of or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the material properties of the Company or any Subsidiary pursuant to, any material indenture, mortgage, deed of trust, contract, commitment or other agreement or instrument, known to Company Counsel, to which the Company or any Subsidiary is a party or by which any of the material properties or assets of the Company or any Subsidiary is bound or subject or (C) violate any law, rule or regulation applicable to the Company or any Subsidiary, or to Company Counsel's knowledge violate any judgment, order or decree, of any government or governmental agency, instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of the material properties of the Company or any Subsidiary.
(v) The Company has the authorized and outstanding capitalization as set forth in the Prospectus. To the knowledge of Company Counsel there are no options or warrants for the purchase of, other outstanding rights to purchase, agreements or obligations to issue or agreements or other rights to convert or exchange any obligation or security into, capital stock of the Company or securities convertible into or exchangeable for capital stock of the Company, except as described in the Registration Statement or the Prospectus.
(vi) The Common Shares outstanding immediately prior to the Closing Date, including the Common Shares to be sold by the Selling Stockholders, have been duly authorized and are validly issued, fully paid and nonassessable; the Employee Options have been duly authorized and validly issued; the Common Shares issuable pursuant to the Employee Options, when issued in accordance with the respective terms thereof, will be duly authorized and validly issued, fully- paid and nonassessable; the Company has reserved a sufficient number of Common Shares for issuance pursuant to the Employee Options, and none of such outstanding Common Shares or Employee Options are, and none of such issuable Common Shares will be, issued in violation of any preemptive rights, known to Company Counsel of any security holder of the Company that have not been waived.
(vii) All of the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, to the knowledge of Company Counsel, are owned beneficially by the Company free and clear of all liens, security interests, pledges, charges, encumbrances, stockholders agreements, voting trusts, equities or claims of any nature whatsoever except as provided under the Loan Documents.
(viii) The issuance and sale of the Shares by the Company have been duly authorized and, when the Shares have been duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable. None of the Shares issued by the Company will be issued in violation of any preemptive rights of any stockholder of the Company pursuant to the Charter or By-laws, as amended to the date hereof, of the Company and, to the knowledge of Company Counsel, there are no contractual preemptive rights that have not been waived that exist with respect to the Shares. The certificates representing the Shares are in proper legal form under, and conform in all material respects to the requirements of, the MGCL. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives any security holder of the Company any rights, other than those which have been waived and those of the Selling Stockholders, for or relating to the registration of any Common Shares and there are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person.
(ix) No consent, approval, authorization, order, registration, license or permit of any court, government, governmental agency, instrumentality or other regulatory body or official is required for the valid authorization, issuance, sale and delivery by the Company of any of the Shares or for the execution, delivery or performance by the Company of this Agreement, except such as may be required for the registration of the Shares under the Act, the Regulations or the Exchange Act, or for compliance with the applicable state securities or Blue Sky laws, or the By- laws, rules and other pronouncements of the NASD as to which no opinion shall be required.
(x) To Company Counsel's knowledge except as disclosed in the Registration Statement there are no material claims, actions, suits, proceedings, arbitrations, investigations or inquiries pending before, or threatened or contemplated by, any governmental agency, instrumentality, court or tribunal, domestic or foreign, or before any private arbitration tribunal, to which the Company is a party or is threatened to be made a party that, if determined adversely to the Company, would, in any case or in the aggregate, result in any material adverse change in the general affairs, material properties, condition (financial or otherwise), results of operations, stockholders' equity or business of the Company and the Subsidiaries.
(xi) The Registration Statement has become effective under the Act, as of the Effective Date, and, to Company Counsel's knowledge, the SEC has not issued any stop order suspending the effectiveness of the Registration Statement, nor has the SEC instituted or threatened to institute proceedings with respect to any such order. Any and all filings required to be made by Rule 424 and Rule 430A under the Act have been made.
(xii) The Registration Statement and the Prospectus, as of the Effective Date, and each amendment or supplement thereto as of its effective or issue date (except for the financial statements and notes thereto, and related schedules, and other financial, statistical, technical or scientific information, included therein or omitted therefrom, as to which Company Counsel need not express an opinion) comply as to form in all material respects with the applicable requirements of Rule 497 of the Rules Act and Regulations.
(bxiii) The Representative shall not have advised Assuming application of the net proceeds of the offering in accordance with the Prospectus, the Company is not, and will not be as a result of the consummation of the transactions contemplated by this Agreement, an "investment company" or a company "controlled" by an "investment company" within the meaning of the 1940 Act. In addition to the matters set forth above, such opinion shall also include a statement to the effect that while Company Counsel has participated in the preparation of the Registration StatementStatement and the Prospectus, including reviews and discussions of the contents thereof, and while such Counsel has no particular expertise and is not expressing any view with respect to the financial statements and notes thereto and related schedules and the other financial, statistical, technical and scientific information contained in the Prospectus, and is not passing upon the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus, other than those specifically referred to in clause (v) of this subsection (e) of this Section 7, in the course of such reviews and discussions, no facts came to its attention that would cause it to have reason to believe that (A) the Registration Statement or any post-effective amendment thereto, contains an on the date it became effective and on the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a omitted any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or that (B) the Prospectus on the Effective Date, on the date it was filed pursuant to Rule 424(b) and on the Closing Date or Option Closing Date, as the case may be, contained any untrue statement of material fact or omitted any material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading.
(cxv) On or prior Nothing has come to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect attention of Company Counsel that causes it to the organization believe that each of the CompanyCompany and the Subsidiaries does not have sufficient licenses, the validity of the Securitiespermits, the Registration Statementcertifications, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizationsregistrations, approvals, ordersconsents and franchises (collectively, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary "Permits") required to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct Prospectus in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were maderespects.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of each Underwriter to purchase and pay for the Underwriters Offered Shares that it has agreed to purchase hereunder shall be on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on any Option Closing Date, is subject at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy of the respective representations and warranties of the Company herein as and of the Selling Stockholder set forth herein, to the performance by the Company and by the Selling Stockholder of their respective covenants and obligations hereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 5:30 p.m., Philadelphia time, on the date hereof and of this Agreement, or at such later time or on such later date as the Representatives may agree to in writing; if required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Closing Date Regulations within the applicable time period prescribed for such filing by the Regulations and each Option Closing Date, if any, as if they had been made in accordance with subsection (a) of Section 5 hereof; on and as of or prior to the Closing Date or each any Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order or other order preventing or suspending the effectiveness of the Registration Statement or the sale of any of the Shares shall have been issued under the Act or any state securities law and no proceedings for that purpose shall have been instituted initiated or shall be pending or, to the Representatives' knowledge or the knowledge of the Company, shall be contemplated by the Commission SEC or by any authority in any jurisdiction designated by the Representatives pursuant to subsection (f) of Section 5 hereof and any request on the part of the Commission SEC for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters' Counsel. If .
(b) All corporate proceedings and other matters incident to the Company has elected to rely upon Rule 430A authorization, form and validity of the Rules and Regulationsthis Agreement, the price of the Shares and any price-related information previously omitted from the effective form of the Registration Statement pursuant and the Prospectus, and all other legal matters relating to such Rule 430A this Agreement and the transactions contemplated hereby, shall have been transmitted be satisfactory in all respects to counsel to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date Underwriters; the Company shall have provided evidence furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; and the Representatives shall have received from the Underwriters' counsel, Duane, Morris & Heckscher, a favorable opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as the Representatives of the several Underwriters with respect to the due authorization, execution and delivery of this Agreement, that the issuance and sale of the Shares have been duly authorized by the Company and the Selling Stockholder, that when the Offered Shares have been duly delivered against payment therefor as contemplated by this Agreement, they will be validly issued, fully paid and nonassessable and that the Registration Statement has become effective under the Act.
(c) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(d) The Representatives shall have received copies of the lock-up agreements described in subsection (xii) of Section 5(a) and subsection (i) of Section 5(b) signed by those persons set forth on Schedule II annexed hereto.
(e) The Representatives shall have received at or prior to the Closing Date from the Underwriters' counsel a memorandum or summary, in form and substance satisfactory to the Representative Representatives, with respect to the qualification for offering and sale by the Underwriters of the Shares under the securities or Blue Sky laws of such timely filingjurisdictions designated by the Representatives pursuant to subsection (vii) of Section 5(a) hereof.
(f) On the Closing Date and any Option Closing Date, or a post-effective amendment providing such information there shall have been promptly filed delivered to the Representatives a signed opinion of Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company ("Company Counsel"), dated as of each such date and declared effective addressed to the Representatives individually and as the Representatives of the several Underwriters to the effect that:
(i) The Company has been incorporated and is validly existing and in good standing under the laws of Delaware, with corporate power and authority to own or lease and operate its properties and to conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement. The Company is duly qualified to do business as a foreign corporation and is in good standing in all jurisdictions in which it owns or leases properties, or conducts any business, so as to require such qualification, except where the failure so to qualify would not have a material adverse effect on the general affairs, properties, condition (financial or otherwise), results of operations, stockholders' equity or business of the Company. To the knowledge of Company Counsel, the Company does not own any stock or other equity interest in any corporation, partnership or other entity other than the Subsidiaries.
(ii) Each Subsidiary has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. Each Subsidiary is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business, so as to require such qualification, except where the failure so to qualify would not have a material adverse effect on the general affairs, properties, condition (financial or otherwise), results of operations, stockholders' equity or business of the Company and its Subsidiaries.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The execution, delivery and performance of this Agreement by the Company and the Selling Stockholder does not and will not, with or without the giving of notice or the lapse of time, or both, (A) conflict with any terms or provisions of the Certificate of Incorporation or By-laws, as amended to the date hereof of each of the Company, the Selling Stockholder or the Subsidiaries; (B) result in a breach of, or constitute a default under, result in the termination or modification of or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the properties of the Company, the Selling Stockholder or any Subsidiary pursuant to, any indenture, mortgage, deed of trust, contract, commitment or other agreement or instrument, known to Company Counsel, to which the Company, the Selling Stockholder or any Subsidiary is a party or by which any of the properties or assets of the Company, the Selling Stockholder or any Subsidiary is bound or subject or (C) violate any law, rule or regulation, or any judgment, order or decree, known to Company Counsel, of any government or governmental agency, instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Selling Stockholder or any Subsidiary or any of the properties of the Company, the Selling Stockholder or any Subsidiary.
(v) The Company has the authorized and outstanding capitalization as set forth in the Prospectus. There are no options or warrants for the purchase of, other outstanding rights to purchase, agreements or obligations to issue or agreements or other rights to convert or exchange any obligation or security into, capital stock of the Company or securities convertible into or exchangeable for capital stock of the Company, except as described in the Registration Statement or the Prospectus.
(vi) The authorized capital stock of the Company, including, without limitation, the outstanding Common Shares and the Shares being issued on the Closing Date and any Option Closing Date, conforms in all material respects with the descriptions thereof in the Prospectus, and such descriptions conform in all material respects with the descriptions thereof set forth in the instruments defining the same. The information in the Prospectus insofar as it relates to the Employee Options is true and correct in all material respects.
(vii) The Common Shares outstanding immediately prior to the Closing Date, including the Common Shares to be sold by the Selling Stockholder, have been duly authorized and are validly issued, fully paid and nonassessable; the Employee Options have been duly authorized and validly issued and are legal, valid and binding obligations, enforceable against the Company in accordance with their respective terms; the Common Shares issuable pursuant to the Employee Options, when issued in accordance with the respective terms thereof, will be duly authorized and validly issued, fully-paid and nonassessable; the Company has reserved a sufficient number of Common Shares for issuance pursuant to the Employee Options, and none of such outstanding Common Shares or Employee Options are, and none of such issuable Common Shares will be, issued in violation of any preemptive rights, known to Company Counsel, of any security holder of the Company that have not been waived.
(viii) All of the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, and, except for AEMI, are, and, in the case of AEMI, will be, owned beneficially by the Company free and clear of all liens, security interests, pledges, charges, encumbrances, stockholders agreements, voting trusts, defects, equities or claims of any nature whatsoever. To such counsel's knowledge, other than the subsidiaries listed on Exhibit 21.1 to the Registration Statement, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association.
(ix) The issuance and sale of the Shares by the Company have been duly authorized and, when the Shares have been duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable. None of the Shares will be issued in violation of any preemptive rights of any stockholder of the Company pursuant to the Certificate of Incorporation or By-laws, as amended to the date hereof, of the Company and, to the knowledge of Company Counsel, there are no contractual preemptive rights that have not been waived that exist with respect to the Shares. The certificates representing the Shares are in proper legal form under, and conform in all respects to the requirements of, the DGCL. To the knowledge of Company Counsel, neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives any security holder of the Company any rights, other than those which have been waived, for or relating to the registration of any Common Shares and there are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person.
(x) No consent, approval, authorization, order, registration, license or permit of any court, government, governmental agency, instrumentality or other regulatory body or official is required for the valid authorization, issuance, sale and delivery by the Company or the Selling Stockholder of any of the Shares or for the execution, delivery or performance by the Company or the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Act, the Regulations or the Exchange Act, or for compliance with the applicable state securities or Blue Sky laws, or the By-laws, rules and other pronouncements of the NASD.
(xi) The descriptions contained in the Registration Statement and the Prospectus of statutes or regulations, legal and governmental proceedings and of contracts and other documents are accurate in all material respects and fairly present in all material respects the information required to be shown. To Company Counsel's knowledge, there are no contracts, agreements or other documents required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement under the Act or the Regulations that have not been so described, referred to or filed as required.
(xii) To Company Counsel's knowledge, there are no claims, actions, suits, proceedings, arbitrations, investigations or inquiries pending before, or threatened or contemplated by, any governmental agency, instrumentality, court or tribunal, domestic or foreign, or before any private arbitration tribunal, to which the Company is a party or is threatened to be made a party that, if determined adversely to the Company, would, in any case or in the aggregate, result in any material adverse change in the general affairs, properties, condition (financial or otherwise), results of operations, stockholders' equity or business of the Company and the Subsidiaries.
(xiii) The Registration Statement has become effective under the Act, as of the Effective Date, and, to Company Counsel's knowledge, the SEC has not issued any stop order suspending the effectiveness of the Registration Statement, nor has the SEC instituted or threatened to institute proceedings with respect to any such order. Any and all filings required to be made by Rule 424 and Rule 430A under the Act have been made.
(xiv) The Registration Statement and the Prospectus, as of the Effective Date, and each amendment or supplement thereto as of its effective or issue date (except for the financial statements and notes thereto, and related schedules, included therein or omitted therefrom, as to which Company Counsel need not express an opinion) comply as to form in all material respects with the applicable requirements of Rule 497 of the Rules Act and Regulations.
(bxv) The Representative shall Company is not, and will not have advised be as a result of the consummation of the transactions contemplated by this Agreement, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company that Act of 1940.
(xvi) Company Counsel has participated in the preparation of the Registration StatementStatement and the Prospectus, including reviews and discussions of the contents thereof, and while such Counsel has no particular expertise with respect to the financial statements and notes thereto and related schedules and the technical and scientific information contained in the Prospectus, and is not passing upon the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus, other than those specifically referred to in the other clauses of this subsection (f) of this Section 7, in the course of such reviews and discussions, no facts came to its attention that would cause it to have reason to believe that (A) the Registration Statement or any post-effective amendment thereto, contains an on the date it became effective and on the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a omitted any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On misleading or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and that (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect Prospectus on the Company); to such counsel's knowledgeEffective Date, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for date it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery was filed pursuant to this Agreement Rule 424(b) and on the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantClosing Date or Option Closing Date, as the case may be, will acquire good and marketable title contained any untrue statement of material fact or omitted any material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading.
(xvii) Nothing has come to the Securities free and clear attention of Company Counsel which causes it to believe that there exists any pledge, lien, charge, claim, encumbrance, pledge, security defect in title or leasehold interest, or other restriction any lien, claim or equity of any kind whatsoever (except those arising out of acts or claims against encumbrance which would materially affect the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely use made in the appropriate form under Rule 430A, and, to such counselCounsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts proposed to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporatedmade, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms personal or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any real property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company io
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder Underwriter to purchase the Stock shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Shareholder herein contained, as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as the Selling Shareholder of the Closing Date and each Option Closing Date, if any, of its covenants and their obligations hereunder and to the following further additional conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:30 pm., New York Cleveland time, on the date of this Agreement hereof, or at such later date and time as shall be consented to in writing by the Representativeyou, and, at Closing Date if you and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has have elected to rely upon Rule 430A of the Rules and Regulations430A, the price of the Shares Stock and any price-price related or other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations 424(b) within the prescribed time period, and on or prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.430A.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative You shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CThom▇▇▇▇, ▇y▇ne & ▇lor▇ ▇▇▇, counsel for the Company, a favorable opinion dated the applicable Closing Date, addressed to the Underwriters Date and in form and substance satisfactory to Underwriters' Counsel, you and your counsel to the effect that:
(i) the The Company (A) has been is a corporation duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionOhio, and (B) has all requisite with corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement own, lease and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, operate its property and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments does not own or supplements thereto, conflicts with lease property or will conflict with or results or will result transact business in any breach jurisdiction where the ownership of such property or violation the transaction of any such business would require the Company to qualify as a foreign corporation under the laws of such jurisdiction, except where the terms failure to so qualify would, individually or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lienaggregate, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the financial condition, earnings, capital (regulatory and otherwise), business, properties, prospects or results of operations of the Company, the Bank and the Other Subsidiaries taken as a whole.
(viiiii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business The authorized capital stock of the Company conform to the description thereof contained is as set forth in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision ; all issued and outstanding shares of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any Common Stock of the Company may (including the Stock to be bound or to which sold by the property or assets (tangible or intangibleSelling Shareholder hereunder) of any of the Company ihave been duly authorized, validly issued and are fully paid and nonassessable and, except as
Appears in 1 contract
Sources: Underwriting Agreement (Metropolitan Financial Corp /Oh/)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or each Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholder made pursuant to the provisions hereof; and the performance by each of the Company and the Selling Stockholder on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and Redeemable Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Greenberg, Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & Veith, counsel to the C▇▇▇▇▇y▇▇, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledgeand, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION", and, to such counsel's knowledge, after due inquiry, and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement, the Warrant Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Warrant Agreement and the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants and the Redeemable Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement of the Firm Securities and the Option Securities and the Representative's Warrant of the Securities Warrants to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Firm Securities, the Option Warrants, the Representative's Warrants and the Representative's Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Warrants from the Company, and the purchase by the Representative of the Representative's Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the Representative's Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement, the Warrant Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Warrant Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Warrant Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement, the Warrant Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for therein; and each of this Agreement, the Warrant Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Warrant Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement, the Warrant Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Firm Securities and the Option Warrants pursuant to the Prospectus and the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company icon
Appears in 1 contract
Sources: Underwriting Agreement (Commodore Separation Technologies Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be to purchase the Shares are subject to the continuing accuracy of the representations and warranties of the Company herein accuracy, as of the date hereof and as of at all times through the Closing Date and each Option (as if made on the Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any), of the statements of the officers and compliance with all representations, warranties and agreements of the Company made pursuant to the provisions hereof; and contained herein, the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further additional conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:30 p.m., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representativeyou, and, at each of the Closing Date and each any Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or shall be are pending or or, to the Company’s knowledge, contemplated by the Commission and any Commission. The Company has complied with each request on the part of (if any) from the Commission for additional information information. The Prospectus containing the Rule 430A Information shall have been complied filed with to the reasonable satisfaction of Underwriters' Counsel. If Commission in the Company has elected to rely upon manner and within the time frame required by Rule 430A 424(b) of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Securities Act Regulations (without reliance on Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, 424(b)(8)) or a post-effective amendment providing such information shall have been promptly filed with, and declared effective by, the Commission in accordance with the requirements of Rule 497 430A of the Rules and Securities Act Regulations.
(b) The Shares and the Representative Warrant Shares shall not be approved for listing on Nasdaq, subject to official notice of issuance and evidence of satisfactory distribution.
(c) FINRA shall have advised confirmed that it has no objection to the Company that fairness and reasonableness of the underwriting terms and arrangements.
(d) Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no Material Adverse Change from the latest dates as of which such condition is set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any officer or director of the Company before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may reasonably be expected to result in a Material Adverse Change, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; (iv) the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the rules and regulations thereunder and shall conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder; (v) the Registration Statement nor any amendment thereto, contains an or supplement thereto shall contain any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, misleading and (vi) the Time of Sale Disclosure Package nor the Final Prospectus nor any amendment or that the Prospectus, or supplement thereto shall contain any supplement thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading..
(e) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded any of the Company’s securities by any “nationally recognized statistical organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.
(cf) On or prior to the Closing Date, the Representative shall have received the favorable opinion and negative assurance letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company (“Company Counsel”), dated the Closing Date and addressed to the addressed to the Representative as representative of the several Underwriters, in form and substance reasonably satisfactory to the Representative.
(g) At the time this Agreement is executed, the Representative shall have received a “cold comfort letter” from Underwriters' Counsel, such opinion or opinions the Auditor containing statements and information of the type customarily included in accountants’ comfort letters with respect to the organization financial statements and certain financial information contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, addressed to the Representative as representative of the several Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters, dated as of the date of this Agreement.
(h) At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received from the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, addressed to the Representative as representative of the several Underwriters and in form and substance reasonably satisfactory to the Representative to the effect that the Auditor reaffirms the statements made in the letter furnished pursuant to Section 6(g).
(i) The Company shall have delivered to the Representative as representative of the several Underwriters a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chief Executive Officer and its Principal Accounting Officer certifying that (i) such officers have carefully examined the Registration Statement, the Time of Sale Disclosure Package, any Issuer Free Writing Prospectus and the Final Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Time of Sale Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Final Prospectus and each amendment or supplement thereto, as of the respective dates thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Time of Sale Disclosure Package, any material adverse change in the financial position or results of operations of the Company, or any change or development that, singularly or in the aggregate, involves a Material Adverse Change, except as set forth in the Final Prospectus.
(j) The Company shall have delivered to the Representative as representative of the several Underwriters a certificate, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Secretary certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached as exhibits or annexes to such certificate.
(k) On or before the date of this Agreement, the Company shall have delivered to the Representative as representative of the several Underwriters executed copies of the Lock-Up Agreements from each of the Lock-Up Parties.
(l) At the Closing Date, the Representative Warrants and, as to each Option Closing Date, if any, the additional Representative Warrants, in definitive form, in such denominations and registered in such names as the Representative or its designees request, shall have been delivered to the Representative.
(m) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the SecuritiesRepresentative Warrants and each Lock-Up Agreement, the Shares, the Registration Statement, the Time of Sale Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Final Prospectus and all other related legal matters as relating thereto and the Representatives may request transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel to the Underwriters' Counsel , and the Company shall have received furnished to such papers counsel all documents and information as that they may reasonably request to enable them to pass upon such matters.
(dn) At The Company shall have furnished to the Underwriters and their counsel such additional documents, certificates and evidence as the Underwriters or their counsel may have reasonably requested no more than 3 business days prior to the Closing Date. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel by notice to the C▇▇▇▇▇y, dated Company at any time at or prior to the Closing Date, addressed and such termination shall be without liability of any party to the Underwriters and in form and substance satisfactory to Underwriters' Counselany other party, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar mattersexcept that Section 5(a)(viii), materially necessary to own or lease its properties Section 9 and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of Section 10 shall survive any such authorization, approval, order, license, certificate, franchise, or permit which, singly or termination and remain in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state full force and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were madeeffect.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters hereunder shall be to purchase the Shares are subject to the continuing accuracy each of the representations following terms and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Verbal notification from the Company that the Registration Statement which became effective on the Effective Date shall have been received by the Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus,” as defined in Rule 405 of the Rules, shall have been or shall be in form effect and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or shall be pending before or contemplated threatened by the Commission Commission, and any request requests for additional information on the part of the Commission for additional information to be included in the Registration Statement or the Prospectus shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Commission and the Underwriter. If the Company has elected to rely upon Rule 430A of the Rules and Regulations430B, the price of the Shares and any price-related Rule 430B information previously omitted from the effective Registration Statement pursuant to such Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations 424(b) within the prescribed time period, period and prior to Closing Date the Company shall have provided evidence reasonably satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430B.
(c) The representations and warranties of the Rules Company contained in this Agreement and Regulationsin the certificates delivered pursuant to Section 4(d) shall be true and correct when made and on and as of each Closing Date as if made on such Closing Date. The Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by them at or before each Closing Date.
(bd) The Representative Representatives shall not have advised received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company that , certifying solely in their capacities as officers of the Company on behalf of the Company, that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed all covenants and agreements and satisfied all conditions contained herein; (iii) they have examined the Registration Statement, or the Prospectus, the General Disclosure Package, and any amendment theretoindividual Issuer Free Writing Prospectuses and, contains an in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact which, in the Representative's opinion, is material, or omits and did not omit to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
, and (cB) On since the Applicable Time no event has occurred which should have been set forth in a supplement or prior an amendment to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the General Disclosure Package or the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company that has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holdersso disclosed; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's their knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;Securities Act.
(ve) each The Representatives shall have received, (i) simultaneously with the execution of this Agreement a signed letter from KPMG LLP addressed to the Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and other certain financial information contained in the Statutory Prospectus, and statistical data included therein(ii) on each Closing Date, as a signed letter from KPMG LLP addressed to which no opinion need be rendered) comply as the Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to form in all material respects with the requirements Representatives containing statements and information of the Acts and the Rules and Regulations.
(vi) type ordinarily included in accountants’ “comfort letters” to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, underwriters with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid financial statements and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof certain financial information contained in the Registration Statement and the Prospectus;.
(xf) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇ LLP, counsel for the Company, an opinion and a negative assurance letter, each addressed to the Representatives and dated such counsel's knowledgeClosing Date (with appropriate modifications for any opinion or negative assurance letter delivered on any subsequent Closing Date), in substantially the forms attached hereto as Exhibit B-1 and Exhibit B-2, respectively.
(g) The Representatives shall have received on each Closing Date from each of Global Patent Group, LLC and Fish & ▇▇▇▇▇▇▇▇▇▇ LLP, special intellectual property counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in substantially the forms attached hereto as Exhibit C.
(h) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion addressed to the Representatives and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, provided that the Representatives have requested such opinion, and the Company shall have furnished to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters, with such documents being limited to those that are similar in substance to the documents delivered to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in connection with prior securities offerings by the Company where ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP was underwriters’ counsel.
(i) The Representatives shall have received copies of the Lock-up Agreements executed by each person listed on Schedule II hereto.
(j) The Shares shall have been approved for listing on the Nasdaq Global Select Market, subject only to official notice of issuance, and the Company shall not have received any notice that it is not in breach of, compliance with the listing or in default under, any term or provision maintenance requirements of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any Nasdaq.
(k) The Representatives shall have received as of the Company may be bound or date of this Agreement and on each Closing Date a certificate, addressed to which the property or assets (tangible or intangible) of any Representatives and dated such Closing Date, of the chief financial officer of the Company, in substantially the form attached hereto as Exhibit D.
(l) The Company ishall have furnished or caused to be furnished to the Representatives such further certificates or documents as the Representatives shall have reasonably requested, with such requested certificates and documents being limited to those that are similar in substance to the certificates and documents delivered in connection with prior underwritten public offerings by the Company.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representative's Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, except where the failure to be so qualified or licensed would not have a Material Adverse Effect, and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus, except where the failure to do so would not have a Material Adverse Effect; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to material compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiry, Description of Securities," and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement and the Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ithe
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Shares, Redeemable Warrants and Convertible Debentures and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative Representatives shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇ ▇▇▇▇▇y▇▇▇▇▇▇▇ Silver ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLC, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, and in substantially the form of Schedule C hereto.
(e) At the Closing Date, the Underwriters shall have received the favorable opinion of Kalogredis, Tsoules and ▇▇▇▇▇▇▇ Ltd., regulatory counsel to the effect that:Company, dated the Closing Date, addressed to the Underwriters, in form and substance satisfactory to Underwriters' Counsel and in substantially the form of Schedule B hereto.
(f) At each Option Closing Date, if any, the Underwriters shall have received the favorable opinions of each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Silver ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLC, counsel to the Company, and Kalogredis, Tsoules and ▇▇▇▇▇▇▇ Ltd., regulatory counsel to the Company, dated such Option Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel confirming as of such Option Closing Date the statements made by each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Silver ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLC, and Kalogredis, Tsoules and ▇▇▇▇▇▇▇ Ltd., in their respective opinions delivered on the Closing Date.
(g) On or prior to each of the Closing Date and each Option Closing Date, if any, Underwriters' Counsel shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in subsection (c) of this SECTION 6, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company, or herein contained.
(h) Prior to each of the Closing Date and each Option Closing Date, if any, (i) there shall have been no material adverse change nor development involving a prospective change in the condition, financial or otherwise, earnings, position, value, properties, results of operations, prospects, stockholders' equity or the business activities of any of the Company, the Corporate Entities or the Initial Affiliated Practices, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by any of the Company, the Corporate Entities or the Initial Affiliated Practices, from the latest date as of which the financial condition of the Company, the Corporate Initial Affiliated Practices or the Initial Affiliated Practices is set forth in the Registration Statement and Prospectus which is adverse to the Company, the Corporate Entities or the Initial Affiliated Practices, (iii) none of the Company, the Corporate Entities or the Initial Affiliated Practices shall be in default under any provision of any instrument relating to any outstanding indebtedness; (iv) none of the Company or the Corporate Entities shall have issued any securities (Aother than the Securities) has been duly organized and is validly existing as a corporation or declared or paid any dividend or made any distribution in good standing under the laws respect of its jurisdictioncapital stock of any class and there has not been any change in the capital stock or any material change in the debt (long or short term) or liabilities or obligations of any of the Company, and the Corporate Entities or the Initial Affiliated Practices (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental contingent or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar mattersotherwise), materially necessary to own or lease its properties and conduct its business except as described in the Prospectus; (v) no material amount of the Company is not qualified as a foreign corporation in assets of any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on of the Company); to such counsel's knowledge, the Company has not received Corporate Entities or the Initial Affiliated Practices shall have been pledged or mortgaged, except as set forth in the Registration Statement and Prospectus; (vi) no action, suit or proceeding, at law or in equity, shall have been pending or threatened (or circumstances giving rise to same) against any notice of proceedings relating to the revocation Company, the Corporate Entities or modification of any such authorization, approval, order, license, certificate, franchisethe Initial Affiliated Practices, or permit whichaffecting any of its or their respective properties or businesses before or by any court or federal, singly state or in the aggregateforeign commission, if the subject of board or other administrative agency wherein an unfavorable decision, ruling or finding, would materially finding man adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospectsposition, value, properties, business results of operations, prospects or assets financial condition or income of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters Corporate Entities or the Initial Affiliated Practices; and (vii) no stop order shall have been issued under the holders Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission.
(i) At each of the Representative's WarrantClosing Date and each Option Closing Date, if any, the Underwriters shall have received a certificate of the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the Company, dated the Closing Date or Option Closing Date, as the case may be, will acquire good and marketable title to the Securities free effect that each of such persons has carefully examined the Registration Statement, the Prospectus and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales and that:
i. The representations and warranties of the Securities Company in connection this Agreement are true and correct, as if made on and as of the Closing Date or the Option Closing Date, as the case may be, and the Company has complied with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made agreements and covenants and satisfied all conditions contained in the appropriate form under Rule 430A, and, this Agreement on its part to be performed or satisfied at or prior to such counsel's knowledgeClosing Date or Option Closing Date, after due inquiry, no as the case may be;
▇▇. ▇▇ stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any part thereof has been issued issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such person's knowledge, are contemplated or threatened or contemplated under the ActsAct;
(v) iii. The Registration Statement and the Prospectus and, if any, each amendment and each supplement thereto, contain all statements and information required to be included therein, and none of the Preliminary Prospectus, the Registration Statement, the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and neither the Preliminary Prospectus or any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
iv. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (a) none of the Company, the Corporate Entities or the Initial Affiliated Practices has incurred up to and including the Closing Date or the Option Closing Date, as the case may be, other than in the ordinary course of its business, any material liabilities or obligations, direct or contingent; (b) none of the Company or the Corporate Entities has paid or declared any dividends or other distributions on its capital stock; (c) none of the Company, the Corporate Entities or the Initial Affiliated Practices has entered into any transactions not in the ordinary course of business; (d) there has not been any change in the capital stock or long-term debt or any increase in the short-term borrowings (other than any increase in the short-term borrowings in the ordinary course of business) of any of the Company, the Corporate Entities or the Initial Affiliated Practices (e) none of the Company, the Corporate Entities or the Initial Affiliated Practices has sustained any loss or damage to its or their respective properties or assets, whether or not insured; (f) there is no litigation which is pending or threatened (or circumstances giving rise to same) against any of the Company, the Corporate Entities or the Initial Affiliated Practices or any affiliated party of any of the foregoing which is required to be set forth in an amended or supplemented Prospectus which has not been set forth; and (g) there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been set forth. References to the Registration Statement and the Prospectus in this subsection (i) are to such documents as amended and any amendments supplemented at the date of such certificate.
(j) By the Closing Date, the Underwriters will have received clearance from the NASD as to the amount of compensation allowable or supplements thereto payable to the Underwriters, as described in the Registration Statement.
(other than k) At the time this Agreement is executed, the Underwriters shall have received a letter, dated such date, addressed to the Underwriters in form and substance satisfactory (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) in all respects to the Underwriters and Underwriters' Counsel, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., P.C.:
i. confirming that they are independent certified public accountants with respect to the Company, the Corporate Initial Affiliated Practices and the Initial Affiliated Practices within the meaning of the Act and the applicable Rules and Regulations;
ii. stating that it is their opinion that the financial statements and other financial supporting schedules of the Company, the Corporate Initial Affiliated Practices and statistical data the Initial Affiliated Practices included therein, as to which no opinion need be rendered) in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Acts Act and the Rules and Regulations.
(vi) Regulations thereunder and that the Representatives may rely upon the opinion of ▇▇▇▇▇▇▇ Radin & Co., P.C. with respect to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described consolidated financial statements and supporting schedules included in the Registration Statement and Statement;
iii. stating that, on the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits basis of a limited review which have been filed are correct copies included a reading of the documents latest available unaudited interim financial statements of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations each of the Company, which could materially adversely affect the present or prospective ability Corporate Initial Affiliated Practices and the Initial Affiliated Practices, a reading of the Company to perform its obligations under this Agreement or which in any manner draws into question latest available minutes of the validity or enforceability stockholders and board of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement directors and the Representative's Warrantvarious committees of the boards of directors of each of the Company, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement Corporate Initial Affiliated Practices and the Representative's Warrant Initial Affiliated Practices, consultations with officers and other employees of each has been duly authorized, executed and delivered by of the Company. This Agreement , the Corporate Initial Affiliated Practices and the Representative WarrantInitial Affiliated Practices, assuming due authorizationresponsible for financial and accounting matters and other specified procedures and inquiries, execution and delivery by each other party hereto and, with respect nothing has come to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating their attention which would lead them to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, believe that (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof pro forma financial information contained in the Registration Statement and Prospectus does not comply as to form in all material respects with the Prospectus;
(x) to such counsel's knowledgeapplicable accounting requirements of the Act and the Rules and Regulations or is not fairly presented in conformity with generally accepted accounting principles applied on a basis consistent with that of the audited financial statements of the Company, the Company is not in breach ofCorporate Initial Affiliated Practices and the Initial Affiliated Practices, or the unaudited pro forma financial information included in default underthe Registration Statement, any term (B) the unaudited financial statements and supporting schedules of the Company, the Corporate Initial Affiliated Practices and the Initial Affiliated Practices included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations or provision are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of any licensethe audited financial statements of the Company, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed moneythe Corporate Initial Affiliated Practices and the Initial Affiliated Practices included in the Registration Statement, or any other agreement or instrument (C) at a specified date not more than five (5) days prior to which the Company is a party or by which any effective date of the Company may be bound Registration Statement, there has been any change in the capital stock or to which the property or assets (tangible or intangible) long-term debt of any of the Company iCompany, the Corporate Initial Affiliated Practices and the Initial Affiliated Practices, or any decrease in the stockholders' equity or net current assets or net assets of any of the Company, the Corporate Initial Affiliated Practices and the Initial Affiliated Practices as compared with amounts shown in the June 30, 1997 balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any change or decrease, setting forth the amount of such change or decrease, and (D) during the period from June 30, 1997 to a specified date not more than five (5) days prior to the effective date of the Registration Statement, there was any decrease in net revenues, net earnings or increase in net earnings per common share of any of the Company, the Corporate Initial Affiliated Practices and the Initial Affiliated Practices, in each case as compared with the corresponding period beginning June 30, 1996, other than as set forth in or contemplated by the Registration Statement, or, if there was any such decrease, setting forth th
Appears in 1 contract
Sources: Underwriting Agreement (Integrated Physician Systems Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and in all material respects as of the Closing Date and each Option the Overallotment Closing Date, if any, as if they had been made on and as of the Closing Date or each Option the Overallotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Overallotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option the Overallotment Closing Date, if any, of each of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:30 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option the Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Company shall not have advised the Company Underwriters that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinionUnderwriters' reasonable opinion and the reasonable opinion of Underwriters' Counsel as defined below, is material, material or omits to state a fact which, in the Representative's opinionUnderwriters' reasonable opinion and the reasonable opinion of Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, Underwriters' reasonable opinion and the reasonable opinion of its counsel is material, or omits to state a fact which, in the Representative's opinionUnderwriters' reasonable opinion and the reasonable opinion of Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior All corporate proceedings and other legal matters incident to the Closing Dateauthorization, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the form and validity of this Agreement, the Securities, the Registration StatementUnderwriters' Warrants, the Prospectus Registration Statement and the Prospectus, and all other related legal matters as relating to this Agreement and the Representatives may request transactions contemplated hereby, shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and Underwriters' Counsel the Company shall have received furnished to such papers counsel all documents and information as that they may reasonably request to enable them to pass upon such matters.
(d) At the Closing Date and the Overallotment Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & VeithLowndes, counsel to the CDrosdick, Doster, ▇▇▇▇▇y▇ & ▇▇▇▇, P.A., Florida counsel to the Company, dated the Closing Date, or Overallotment Closing Date, as the case may be, addressed to the Underwriters and in form and substance reasonably satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Florida with full corporate power and authority to own or lease its properties and to carry on its business as set forth in the Registration Statement and Prospectus. We confirm that the Company is qualified to do business in the following States: _______________;
(ii) Each of Victory Distribution Inc., Victory Television, Inc., Victory Animation Studios Inc., Lightpoint Entertainment, Inc. and Vamps Productions, Inc. (the "Florida Subsidiaries") has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Florida with full corporate power and authority to own or lease its properties and to carry on its business as set forth in the Registration Statement and Prospectus. Based solely on certificates from public officials, we confirm that the Florida Subsidiaries are qualified to do business in the following States: Victory Distribution Inc.: ______________________, Victory Television, Inc.: __________________, Victory Animation Studios Inc.: _________________, Lightpoint Entertainment, Inc.: ______________________ and Vamps Productions, Inc.: ______________________;
(iii) All issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof are not, except by reason of their own conduct or acts, subject to personal liability by reason of being such holders, and to the counsel's knowledge none of such securities were issued in violation of the preemptive rights of any holder of any security of the Company. The Securities to be sold by the Company hereunder have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof, will be validly issued, fully paid and non-assessable and conform or upon issuance will conform to the description thereof contained in the Prospectus; to such counsel's knowledge, the Securities are not subject to any preemptive or other similar rights of any shareholder of the Company; to such counsel's knowledge, the holders of the Securities shall not be personally liable for the payment of the Company's debts solely by reason of being such holders except as they may be liable by reason of their own conduct or acts; and the certificates representing the Securities are in due and proper form under applicable Florida law. The shares of Common Stock issuable upon exercise of the Underwriters' Warrants have been reserved for issuance. When certificates evidencing the shares of Common Stock issuable upon the exercise of the Underwriters' Warrants have been duly executed, countersigned, registered, issued and delivered upon exercise of the Underwriters' Warrants in accordance with the terms thereof, the shares of Common Stock issuable upon the exercise of the Underwriters' Warrants will be duly and validly issued, fully paid and non-assessable; to such counsel's knowledge, the Underwriters' Warrants and the shares of Common Stock issuable upon the exercise thereof are not subject to any preemptive or other similar rights of any shareholder of the Company;
(iv) To such counsel's knowledge, the authorized and outstanding capital stock of the Company conforms in all material respects to the description therein contained in the Prospectus under the captions "Capitalization" and "Description of Capital Stock;
(v) Each of this Agreement and the Underwriters' Warrants has been duly and validly authorized, executed and delivered by the Company;
(vi) Neither the execution and performance of this Agreement or the Underwriters' Warrants nor the consummation of the transactions herein or therein contemplated will violate any of the provisions of the articles of incorporation or bylaws, or other organizational documents, of the Company or any of its Florida Subsidiaries or, to such counsel's knowledge, violate any statute, judgment, decree, order, rule or regulation (assuming compliance with all applicable state securities and "Blue Sky" laws) of any court or governmental body of the State of Florida, the violation of which would have a Material Adverse Effect; and
(vii) To such counsel's knowledge, no consent, approval, authorization or order of, and no filing with, any court, regulatory body, government agency or other body of the State of Florida (other than such as may be required under state securities or "Blue Sky" laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the taking of any action by the Company contemplated hereby or thereby, which has not been obtained, except for any such consent, approval, authorization, order or filing, the failure of which to obtain would not have a Material Adverse Effect. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws other than the laws of the State of Florida, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the applicable laws of such other jurisdictions, including, but not limited to, the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ referred to in subsection (e) below, and (B) as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and its subsidiaries and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and its subsidiaries; PROVIDED that copies of any such statements or certificates shall be delivered to Underwriters' Counsel.
(e) At the Closing Date and the Overallotment Closing Date, the Underwriters shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Company, dated the Closing Date, or Overallotment Closing Date, as the case may be, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) Victory Internet Productions, Inc. (the Company (A"Delaware Subsidiary") has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite the State of Delaware with full corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and conduct to carry on its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures set forth in the Registration Statement concerning and Prospectus. Based solely on certificates from public officials, we confirm that the effects of federalDelaware Subsidiary is qualified to do business in the following States:______________________;
(ii) The Registration Statement and any post-effective amendments or supplements thereto (other than the financial statements, state schedules and local lawsother financial and statistical data included therein, rules and regulations on the Company's business as currently conducted and to which no opinion need be rendered) comply as contemplated are correct to form in all material respects and do not omit to state a fact necessary to make with the statements contained therein not misleading in light requirements of the circumstances in which they were made.
(ii) to such counsel's knowledge, Act and the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entityRules and Regulations;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is declared effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsAct;
(viv) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of To such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viiv) the Company has full legal right, power and authority to enter into Each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each Underwriters' Warrants has been duly and validly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, Underwriters' Warrants constitutes a legal, legally valid and binding agreement of the Company Company, enforceable as against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), ;
(vi) Neither the execution and neither the Company's execution or delivery performance of this Agreement and of or the Representative's Warrant, its performance hereunder and thereunder, its Underwriters' Warrants nor the consummation of the transactions herein or therein contemplated hereinwill conflict with, result in the material breach of, or constitute, either by itself or upon notice or the conduct passage of its business as described in the Registration Statementtime or both, the Prospectusa material default under, and any amendments Material Agreement, or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of violate any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws bylaws, or other organizational documents, of the CompanyDelaware Subsidiary or, (B) any licenseso far as is known to such counsel, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) violate any statute, judgment, decree, order, rule or regulation (assuming compliance with all applicable to state securities and "Blue Sky" laws and assuming compliance with the rules and regulations of the NASD) of any court or governmental body of the United States of America, the State of New York or in respect of the General Corporation Law of the State of Delaware, the violation of which would have a Material Adverse Effect on the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of and its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.subsidiaries;
(viiivii) except as described in the Prospectus, no No consent, approval, authorization or orderorder of, and no filing with, any court, regulatory body, government agency or other body of the United States of America, the State of New York or in respect of the General Corporation Law of the State of Delaware (other than such as may be required under state securities or "Blue Sky lawsSky" laws or by the NASD, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions taking of any action by the Company contemplated hereby;hereby or thereby, which has not been obtained, except for any such consent, approval, authorization, order or filing which would not reasonably be expected to have a Material Adverse Effect; and
(ixviii) to To such counsel's knowledge, except as described in the properties and business Prospectus or as have been waived, no person, corporation, trust, partnership, association or other entity holding securities of the Company conform has the contractual right to include and/or register any securities of the Company in the Registration Statement. In addition, such counsel shall also include a statement to the description thereof effect that they have participated in conferences with officers and other representatives of the Company, representatives of the Underwriters, counsel for the Underwriters and representatives of the independent accountants for the Company at which the contents of the Registration Statement, the Prospectus and related matters were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except to the Prospectus;
(x) to extent specified elsewhere in such counsel's knowledgeletter), on the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any basis of the Company may be bound or foregoing (relying as to which materiality to a large extent upon the property or assets (tangible or intangible) opinions of any officers and other representatives of the Company iCompany), no facts have come to the attention of such counsel that causes such counsel to believe that the Registration Statement at the time it became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date or as of the Closing Date or the Overallotment Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
Appears in 1 contract
Sources: Underwriting Agreement (Victory Entertainment Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy in all material respects of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Overallotment Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Overallotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Overallotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Overallotment Closing Date, if any, of each of its material covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become be declared effective by the Commission not later than 12:00 p.m.5:30 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' ’ Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's ’s opinion, and the opinion of its counsel is material, material or omits to state a fact which, in the Representative's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's ’s reasonable opinion, or the opinion of its counsel is material, or omits to state a fact which, in the Representative's ’s reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior The Company’s registration statement pursuant to the Exchange Act on Form 8-A has been declared effective by the Commission.
(d) At the Closing Date and the Overallotment Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith▇▇▇▇, counsel to the CPlant, ▇▇▇▇▇y, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel to the Company, dated the Closing Date, or Overallotment Closing Date, as the case may be, addressed to the Underwriters and in form and substance satisfactory to Underwriters' ’ Counsel, to the effect that:
(i) the Company The Company: (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of Colorado with full corporate power and authority to own and operate its jurisdiction, properties and to carry on its business as set forth in the Registration Statement and Prospectus; (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly licensed or qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so licensed or qualified except where failure to be so qualify qualified or licensed would have a no material adverse effect on upon the Company); and (C) to such the best of counsel's ’s knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, license or permit which, singly qualification which revocation or in the aggregate, if the subject of an unfavorable decision, ruling or finding, modification would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of have a material adverse effect upon the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) The Registration Statement, each Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the exhibits, financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form SB-2 have been satisfied by the Company.
(iii) To the best of such counsel's ’s knowledge, except as described in the Prospectus, the Company does not own an equity interest of a character required to be disclosed in the Registration Statement in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the The Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under "the caption “Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus”. The Securities, Underwriters’ Warrant and all other securities issued the Underwriters’ Warrant Units conform or issuable by the Company, upon issuance will conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and and, to the best knowledge of counsel, all shares of capital stock are fully paid and non-assessable; the holders thereof have no rights are not, except by reason of rescission with respect theretotheir own conduct or acts, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; , and none of such securities were issued in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder are not and will not hereunder, the Underwriters’ Warrant to be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of sold by the Company or, to such counsel's knowledge, agreement, document or instrument, under the Underwriters’ Warrant Agreement and Underwriters’ Warrant Units have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform or upon issuance will conform to the description thereof contained in the Prospectus; the holders thereof will are not be subject to any liability under the laws preemptive or other similar rights of any stockholder of the State of New York as currently in effect solely as Company; that, to such holders; all corporate action required to be taken for counsel’s knowledge, the authorization, issue and sale holders of the Securities has been duly and validly takenUnderwriters’ Warrant Units shall not be personally liable for the payment of the Company’s debts solely by reason of being such holders except as they may be liable by reason of their own conduct or acts; and that the certificates representing the Securities Units, Underwriters’ Warrant and Underwriters’ Warrant Units are in due and proper legal form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities Units to be sold by the CompanyUnderwriters against payment therefor as provided for in this Agreement, the Underwriters and (assuming they are bona fide purchasers within the holders meaning of the Representative's Warrant, as the case may be, Uniform Commercial Code) will acquire good and marketable title to the Securities Units, free and clear of any pledgeall liens, lienencumbrances, charge, claim, encumbrance, pledgeequities, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyinterests and claims.
(ivv) Each of the Registration Statement is and the Form 8-A has been declared effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's ’s knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel’s knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to To the best of such counsel's ’s knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against SB-2 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementRegulations;
(vii) This Agreement, the Company has full legal right, power and authority to enter into this Underwriters’ Warrant Agreement and the Representative's WarrantWarrant Agreement between the Company, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agent and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant Representative have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and the Representative Warrant, assuming due authorization, execution and delivery by that each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes is a legal, valid and binding agreement of the Company Underwriter, as the case may be, constitutes a legally valid and binding agreement of the Company, enforceable as against the Company in accordance with its their respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), and neither .
(viii) Neither the Company's execution or delivery by the Company of this Agreement, the Underwriters’ Warrant Agreement and of or the Representative's WarrantWarrant Agreement, nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct issuance of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements theretoSecurities pursuant to this Agreement, conflicts with or will conflict with or results or will result in any material breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company except to the extent such event will not have a material adverse effect upon the Company pursuant to the terms of, (A) the certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Company, (B) to the best knowledge of such counsel, any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument that is material to the Company to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be are subject, or any indebtedness, or (C) to the best knowledge of such counsel, and except to the extent it would not have a material adverse effect on the Company, any statute, judgment, decree, order, rule or regulation applicable to the Company of or any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreignbody, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledgeUnderwriters’ Option Agreement by the Company, and the properties and business taking of any action by the Company conform to the description thereof contained in the Registration Statement and the Prospectuscontemplated hereby or thereby, which has not been obtained;
(x) Except as described in the Prospectus, to the best knowledge of such counsel's knowledge, the Company is not in breach of, or in default under, any material term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership ’ agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which any of the property or assets (tangible or intangible) of any of the Company iis subject or affected; and, to the best knowledge of counsel, the Company is not in violation of any material term or provision of its Certificate of Incorporation or By-Laws or in violation of any material franchise, license, permit, judgment, decree, order, statute, rule or regulation material to the Company business;
(xi) The statements in the Prospectus under the captions “DESCRIPTION OF BUSINESS” “MANAGEMENT,” “PRINCIPAL STOCKHOLDERS,” ”CERTAIN TRANSACTIONS,” “DESCRIPTION OF SECURITIES,” and “SHARES ELIGIBLE FOR FUTURE SALE” and “RISK FACTORS” have been reviewed by such counsel, and only insofar as they refer to statements of law, descriptions of statutes, rules or regulations or legal conclusions, are correct in all material respects;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and its Subsidiary herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement Statement, which shall be in form and substance satisfactory to the Representative Representatives and Underwriter's Underwriters' Counsel, shall have become effective not no later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares IPO Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Underwriters' opinion, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Representatives shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the CompanyCompany and its Subsidiary, the validity of the IPO Securities, the Representatives' Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Jackier, Gould, Bean, Upfal & Veith, counsel to the C▇▇▇▇▇y▇▇▇, counsel to the Company, dated as of the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiary (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and ; (B) to such counsel's knowledge has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company (C) to such counsel's knowledge is not duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any jurisdiction properties or the character of its operations requires such qualification or licensing; and (D) to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business business, assets or assets results of operations of the CompanyCompany and the Subsidiary taken as a whole. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's or the Subsidiary's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.:
(ii) to such counsel's knowledge, except as set forth in the Prospectus neither the Company does not own nor the Subsidiary owns an equity interest in any other corporation, partnership, joint venture, trust or other business entityentity except with respect to the Company the Subsidiary;
(iii) to such counsel's knowledge the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, neither the Company nor the Subsidiary is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representatives' Warrant Agreement and as described in the Prospectus. The IPO Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company and the Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York Nevada as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The IPO Securities to be sold by the Company hereunder and under the Representatives' Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the IPO Securities has been duly and validly taken; and the certificates representing the IPO Securities are in due and proper form. The Representatives' Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefore the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the IPO Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the IPO Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the IPO Securities, (B) the purchase by the Underwriters of the IPO Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or pending, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements supplement thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company or the Subsidiary is a party or by which it is bound, including any document to which the Company or the Subsidiary is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-1; (C) there is not pending or threatened against the Company or the Subsidiary any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company or the Subsidiary which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or the Subsidiary or this Agreement or the Representative's Representatives' Warrant Agreement or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company or the Subsidiary before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the CompanyCompany and the Subsidiary taken as a whole, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, or the Representatives' Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representatives' Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Representatives' Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and this Agreement and the Representative's Representatives' Warrant each has Agreement have been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Representatives' Warrant Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's WarrantRepresentatives' Warrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its their business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company or the Subsidiary pursuant to the terms of, (A) the certificate of incorporation or by-laws of the CompanyCompany or the Subsidiary, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company or the Subsidiary is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company or the Subsidiary of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or the Subsidiary or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.condition, financial or otherwise, or the earnings, business affairs, position, shareholder's equity, value, operations, properties, business or results of operations of the Company and the Subsidiary taken as a whole;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the IPO Securities pursuant to the Prospectus and the Registration Statement, the issuance of the Representatives' Warrants, the performance of this Agreement and the Representatives' Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company and the Subsidiary conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iStatem
Appears in 1 contract
Sources: Underwriting Agreement (Awg LTD)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Firm Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective covenants and agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed prior to the Firm Closing Date has not been declared effective as of the time of execution hereof, the Registration Statement or each Option Closing Datesuch amendment, and if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement, shall have been declared effective not later than the earlier of (i) 11:00 A.M., New York City time, on the date on which the amendment to the Registration Statement originally filed with respect to the Securities or to the Registration Statement, as the case may be; , containing information regarding the accuracy on and as public offering price of the Closing Date Securities has been filed with the Commission, and (ii) the time confirmations are sent or Option Closing Dategiven as specified by Rule 462(b) or, if any, of the statements of the officers of the Company made pursuant with respect to the provisions hereof; Original Registration Statement, such later time and the performance by the Company on and date as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be been consented to in writing by the Representative; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representative, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains received an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in dated the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Firm Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇, dated ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Closing Date, addressed to Company and the Underwriters and in form and substance satisfactory to Underwriters' CounselSelling Stockholder, to the effect that:
(i) the Company and each of its subsidiaries listed in Schedule 2 hereto (Athe "Subsidiaries") have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not result in a Material Adverse Effect; the Selling Stockholder has been duly organized and is validly existing as a corporation in good standing trust under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits jurisdiction of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were madeorganization.
(ii) the Company and each of the Subsidiaries have corporate power to such counsel's knowledgeown or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus); and the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entityand the Selling Stockholder each have the necessary power and authority to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by each of them;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company free and clear of any perfected security interests that have been in existence for at least 21 days preceding the date of such opinion or, to the best knowledge of such counsel, any other security interests, liens, encumbrances or claims;
(iv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; nonassessable, and, to the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none best knowledge of such securities counsel, were not issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive rights or other similar rights of any stockholder contained in to subscribe for or purchase securities; the certificate of incorporation of the Company orSecurities are duly authorized, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform nonassessable; to the description thereof contained best knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities; and, to the best knowledge of such counsel, no holders of securities of the Company are entitled to have such securities registered under the Registration Statement; (v) the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the holders thereof will not be subject to any liability statements set forth under the laws heading "Business--Regulation," and "Shares Eligible for Future Sale" in the Prospectus, insofar as such statements constitute a summary of the State legal matters, documents or proceedings referred to therein, provide a fair summary of New York as currently such legal matters, documents and proceedings in effect solely as such holders; all material respects;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Selling Stockholder and this Agreement has been duly executed and delivered by the Company and the Selling Stockholder;
(vii) to the knowledge of such counsel, (1) no legal or governmental proceedings are pending to which the Company or any of the Subsidiaries is a party or to which the property of the Company or any of the Subsidiaries is subject that are required to be taken described in the Registration Statement or the Prospectus and are not described therein, and no such proceedings have been threatened against the Company or any of the Subsidiaries or with respect to any of their respective properties and (2) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) except for the authorization▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ financing facility provided by Prudential Securities Incorporated finalized on August 19, issue 1997 and the temporary $2 million increase in the Coast Security Mortgage, Inc. credit facility extended in the second half of August 1997, to the knowledge of such counsel, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (1) the Company and its Subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction not in the ordinary course of business; and (2) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock, except in each case as described in or contemplated by the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus);
(ix) the offering and sale of the Firm Securities has been duly and validly taken; and the certificates representing Option Securities by the Securities are in due and proper form. Upon Selling Stockholder to the issuance and delivery Underwriters pursuant to this Agreement, the compliance by the Company and the Selling Stockholder with the other provisions of this Agreement and the Representative's Warrant consummation of the Securities other transactions herein contemplated do not (1) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or "blue sky" laws or similar laws in applicable foreign jurisdictions and by the NASD, (2) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument known to be sold such counsel to which the Selling Stockholder, the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their respective properties are bound, or, so far as it is known to such counsel, any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator having jurisdiction over the Selling Stockholder, the Company or any of the Subsidiaries, in each case, where such conflict, breach, violation or default would have a Material Adverse Effect or (3) conflict with or violate any of the terms and provisions of the trust agreement, charter documents or by-laws of the Selling Stockholder or the Company, as the Underwriters and case may be;
(x) Upon delivery of certificates for the holders of the Representative's WarrantFirm Securities or Option Securities, as the case may be, will acquire good to be sold by the Selling Stockholder pursuant to the Underwriting Agreement, as evidenced by the executed receipt for such securities by the Underwriter, and payment for such Firm Securities or Option Securities, as the case may be, as provided therein, valid and marketable title to such Securities shall pass to the Securities Underwriters, severally, free and clear of any security interest, mortgage, pledge, lien, charge, claim, encumbrance, pledgerestriction on transfer, security interestclaim or equity, or other restriction or equity known to such counsel, provided that the Underwriters are without notice of any kind whatsoever (except those arising out defect in the title of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the such Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the and take such Securities in connection with the distribution contemplated hereby.good faith;
(ivxi) the Registration Statement is effective under the Acts, and, if applicable, Act; any required filing of all pricing information the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and 424(b) has been timely made in the appropriate form under Rule 430A, manner and within the time period required by Rules 434 and 424(b); and, to such counsel's best knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any amendment thereto has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or are contemplated under by the ActsCommission;
(vxii) each of the Preliminary Prospectus, the Registration StatementStatement originally filed with respect to the Securities and each amendment thereto, any Rule 462(b) Registration Statement and the Prospectus and any amendments or supplements thereto (in each case, other than the financial statements and notes thereto, schedules and reports thereon and other financial financial, numerical, statistical and statistical accounting data included and information contained therein, as to which such counsel need express no opinion need be renderedopinion) comply as to form in all material respects with the applicable requirements of the Acts Act and the Rules rules and Regulationsregulations of the Commission thereunder;
(xiii) if the Company elects to rely on Rule 434, the Prospectus is not "materially different," as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time of its effectiveness or an effective post-effective amendment thereto (including such information that is permitted to be omitted pursuant to Rule 430A);
(xiv) Assuming that the rights of the Company or any of its subsidiaries, as holder of a mortgage servicing receivable or of a residual certificate, in each case backed by a pool of securitized mortgages, in combination with its right as servicer of the pool to forclose on a mortgage in the pool in the event of default, would be deemed to constitute a lien on or other interest in real estate within the meaning of Section 3(c)(5)(C) of the 1940 Act the Company is not, and the transactions contemplated by this Agreement will not cause the Company to become, an investment company subject to registration under the 1940 Act. Such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except such counsel need express no view as to the financial statements and notes thereto, schedules and reports thereon, and other financial and statistical data included or incorporated by reference in the Registration Statement or Prospectus). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deem(s) proper, on certificates of responsible officers of the Company and public officials and opinions of such other counsel as are reasonably acceptable to the Representative. References to the Registration Statement and the Prospectus in this paragraph (b) shall include any amendment or supplement thereto at the date of such opinion.
(vic) The Company shall have received an opinion dated the Firm Closing Date from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the best Company, in form and substance satisfactory to the Representative.
(d) The Company shall have received from each of such counsel's knowledgeDeloitte & Touche LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated, respectively, the date hereof and the Firm Closing Date, in form and substance satisfactory to the Representative, to the effect that:
(Ai) there they are no agreementsindependent accountants with respect to the Company and its consolidated subsidiaries, contracts or other documents required and the Bank and its consolidated subsidiaries, respectively, within the meaning of the Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements examined by the Acts to be described them and included in the Registration Statement and the Prospectus (or Preliminary Prospectus) comply in form in all material respects with the applicable accounting requirements of the Act and filed as exhibits the related published rules and regulations;
(iii) on the basis of carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the Registration Statement other than those described comments set forth in this paragraph (iii), a reading of the minute books of the shareholders, the board of directors and any committees thereof, and inquiries of certain officials who have responsibility for financial and accounting matters for the Company and its consolidated subsidiaries, in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits theretocase of Deloitte & Touche LLP, and the exhibits which have been filed are correct copies Bank and its consolidated subsidiaries, in the case of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, nothing came to their respective attention that caused them to believe that at a specific date not more than five business days prior to the date of such letter, there were any changes in the capital stock or total debt of the documents Company and its consolidated subsidiaries or the Bank and its consolidated subsidiaries, as the case may be, or any decreases in stockholders' equity of which the Company and its consolidated subsidiaries or the Bank and its consolidated subsidiaries, in each case compared with amounts shown on the Company's, or the Bank's, December 31, 1996 consolidated balance sheet, or for the period from January 1, 1997 to such specified date, there were any decreases, as compared with the total revenues, net income or pro forma net income per share, respectively, of the Company and its consolidated subsidiaries or the Bank and its consolidated subsidiaries, as the case may be, of the corresponding period of 1996, except in all instances for changes, decreases or increases set forth in such letter; and
(iv) they purport have carried out certain specified procedures, not constituting an audit, with respect to be copies; (B) certain amounts, percentages and financial information that are derived from the descriptions general accounting records of the Company and its consolidated subsidiaries, or the Bank and its consolidated subsidiaries, as the case may be, and are included in the Registration Statement and the Prospectus and any supplement (or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar mattersPreliminary Prospectus), domestic or foreignand have compared such amounts, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business percentages and financial information with such records of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwiseits consolidated subsidiaries, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform Bank and its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iconsolidated subs
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Ruskin, Moscou, ▇▇▇▇▇ & VeithFaltischek ("Ruskin, Moscou"), counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Capital Stock," and to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Representative's Warrant Agreement, and as described in the Prospectus. The Securities, Registered Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessablenonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Registered Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the The Representative's Warrant of the Securities to be sold by the Company, the Underwriters Warrants constitute valid and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its binding obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal rightissue and sell, power upon exercise thereof and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrantpayment therefor, the receipt number and type of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement securities of the Company enforceable against the Company in accordance with its terms called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement of the Registered Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the Representative, respectively, good and marketable title to the Registered Securities free and clear of all liens and other encumbrances;
(iv) the Registration Statement is effective under the Act, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and neither no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the best of such counsel's knowledge, threatened or contemplated under the Act;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Regulations. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and the Representative and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto);
(vi) to the best of such counsel's knowledge after reasonable investigation, (A) there are no agreements, contracts or other documents required by the Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound are accurate in all material respects and fairly represent the information required to be shown by Form SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against the Company which (x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (y) questions the validity of the capital stock of the Company or this Agreement, or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) there is no action, suit or proceeding pending or threatened against the Company before any court or arbitrator or governmental body, agency or official in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, business, affairs, stockholders' equity, operations, properties, business or results of operations of the Company, which could adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Warrant Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Warrant Agreement or the Representative's Warrant Agreement;
(vii) the Company has the corporate power and authority to enter into each of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement and to consummate the transactions provided for therein; and each of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement has been duly authorized, executed and delivered by the Company. Each of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and none of the Company's execution execution, delivery or delivery performance of this Agreement, the Warrant Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its the consummation by the Company of the transactions contemplated hereinherein or therein, or the conduct of its the Company's business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be renderedrendered or under federal securities laws, as to which no opinion need be rendered pursuant to this subsection (viii) is required in connection with the issuance of the Registered Securities pursuant to the Prospectus Prospectus, and the Registration Statement, the performance of this Agreement, the Warrant Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to the best of such counsel's knowledgeknowledge after reasonable investigation, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to the best knowledge of such counsel's knowledge, and except as disclosed in Registration Statement and the Prospectus, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be is bound or to which the property or assets (tangible or intangible) of any of the Company iis subject; and the Company is not in violation of any term or provision of its articles of incorporation or by-laws, as amended, and to the best of such counsel's knowledge after reasonable investigation, not in violation of an
Appears in 1 contract
Sources: Underwriting Agreement (Us Golf & Entertainment Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholders made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m., New York time, on the first full business day next following the date of this Agreement hereof or such later date and time as shall be have been consented to in writing by the RepresentativeUnderwriters. If required, andthe Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Rules and Regulations. If required, at Closing Date and each Option Closing Date, if any, no any amendment or supplement to the Prospectus shall have been filed in accordance with Rule 424(c) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Selling Stockholders or the Underwriters, shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Underwriters and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegistration Statement, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Underwriters shall not have advised the Company that or any of the Selling Stockholders that, in the opinion of the Underwriters or Underwriters' Counsel, (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Prospectus, or any amendment or supplement thereto, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and request. Underwriters' Counsel shall have received from the Company and the Selling Stockholders such papers and information as they may request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, or covenants of the Company or any of the Selling Stockholders contained herein.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇ & ▇▇▇▇▇▇▇, dated LLP, counsel to the Company, an opinion, on or prior to the date Rights certificates and Prospectuses are first mailed to Safeguard Shareholders and on the Closing Date, addressed to dated the Underwriters respective dates thereof and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company and each of the Company (A) has been Subsidiaries are duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of its jurisdiction, their respective jurisdictions of organization and are duly qualified to transact business as foreign corporations and are in good standing in each jurisdiction in which the Company has represented to such counsel that they own or lease property;
(Bii) has The Company and each of the Subsidiaries have all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental authority necessary or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary required to own or lease its their respective properties and conduct its business businesses as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(viii) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the The Company has full legal right, all requisite power and authority (corporate and other) to enter into this Agreement, the Rights Agent Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Other Purchasers Standby Purchase Agreements and to consummate the transactions provided for herein and therein; and this Agreement Agreement, the Other Purchasers Standby Purchase Agreements and the Representative's Warrant Rights Agent Agreement have each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative WarrantEach of this Agreement, assuming due authorization, execution and delivery by the Underwriters, and each of the Other Purchasers Standby Purchase Agreements, and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other party hereto and, with respect to than the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 ActCompany, constitutes a the legal, valid and binding agreement obligation of the Company Company, enforceable against the Company in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium moratorium, arrangement or other similar laws of general application relating to or affecting enforcement of creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and the application reasonableness) whether applied by a court of equitable principles in any action, legal law or equitableequity, and except as rights to indemnity or and contribution hereunder may be limited by applicable law, statutory duties or public policy (provided that as of the first date of the opinion only, such opinion need not express any opinion set forth above with respect to the Other Purchaser Standby Purchase Agreements that have not theretofore been executed and delivered), and neither the . The Company's execution or and delivery of this Agreement Agreement, the Other Purchasers Standby Purchase Agreements and of the Representative's WarrantRights Agent Agreement, its performance of its obligations hereunder and thereunder, its thereunder and the consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, hereby and any amendments or supplements thereto, conflicts with or thereby do not and will not conflict with or results or will result in any a breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lienliens, chargecharges, claimclaims, encumbranceencumbrances, pledgepledges, security interestinterests, defect defects or other restriction like restrictions or equity equities of any kind whatsoever upon, any right, property or assets asset (tangible or intangible) of the Company or any of the Subsidiaries pursuant to the terms of, of (A) the certificate of incorporation charter or by-laws bylaws, each as amended through the date of the Companyopinion, of the Company and each of the Subsidiaries, (B) any material lease, permit, license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which it any of them is or may be bound or to which any of its their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, except that such counsel need not express an opinion with respect to any violation based upon any covenant of a financial or numerical nature or that requires arithmetic computation and such counsel has not otherwise known of or had reason to expect the occurrence of such default, or (C) to the knowledge of Company counsel, any statute, rule, regulation, judgment, decree, order, rule decree or regulation order applicable to the Company or any of the Subsidiaries or any of their respective activities or properties adopted or issued by an arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, including those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its the Subsidiaries or any of their respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body properties (other than such as may be required under state securities or "Blue Sky lawsSky" laws and such as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters);
(iv) No consent, as approval, authorization or order of, or filing with, any governmental agency or body or, to which no opinion need be rendered) such counsel's knowledge, any court is required in connection with the issuance of the Securities pursuant shares of Common Stock to be sold by the Prospectus Company, the Company's performance of its obligations hereunder, the Offering, or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect. Upon the effectiveness of the Registration Statement, the performance Common Stock will be registered pursuant to Section 12(g) of the Exchange Act, and will be included in the Nasdaq National Market;
(v) At the date or dates indicated in the Prospectus, the authorized, issued and outstanding capital stock of the Company was as set forth therein, and conformed as to legal matters, to the extent that it constitutes matters of law or legal conclusions, to the description thereof contained therein under the captions "CAPITALIZATION" and "DESCRIPTION OF CAPITAL STOCK." All of the issued shares of Common Stock of the Company (including the Shares sold by the Selling Stockholders) have been duly authorized and validly issued, and are fully paid and non-assessable; the holders thereof are not subject to personal liabilities solely by reason of holding such shares; and none of such shares have been issued in violation of the preemptive rights of any security holders of the Company known to Company counsel. The shares of Common Stock issuable to Safeguard, ▇▇ ▇▇ and Offshore upon redemption of the Class B Common Stock of the Company have been duly authorized and reserved for issuance, and upon issuance and delivery against payment therefor will be validly issued, fully paid and nonassessable. The Shares to be sold by the Company have been duly authorized and, when paid for in accordance herewith, will be validly issued, fully paid and non-assessable, and with no personal liability resulting solely from the ownership thereof. Upon the issuance and delivery pursuant to this Agreement of the Shares to be sold by the Company to the Underwriters, assuming the Underwriters do not have knowledge of any Adverse Claim, the Underwriters will acquire good and marketable title to such Shares free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or like equities of any kind whatsoever. Except as described in the Prospectus, there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party or of which it has knowledge, and the Shares to be sold by the Company are not subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, agreement or other arrangement known to such counsel providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the transactions contemplated herebyProspectus. Except as described in the Prospectus, no holder of any securities of the Company or of any options, warrants or other convertible or exchangeable securities of the Company which are exercisable for or convertible or exchangeable for securities of the Company has any right (which has not been waived) to include any securities issued by the Company in the Registration Statement or any registration statement to be filed by the Company within the period commencing on the date the Registration Statement is declared effective by the Commission and ending 180 days after the Expiration Date or to require the Company to file a registration statement under the Act during such period. Based on the form of specimen certificate provided to such counsel, the certificates representing the Shares are in due and proper form;
(vi) The Registration Statement has become effective under the Act. Any required filing of the Prospectus pursuant to Rule 424(b) and 430A(a)(3) of the Rules and Regulations has been made in accordance with the time period required thereby. To such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or are pending or threatened, by the Commission;
(vii) At the time the Registration Statement was declared effective by the Commission, the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements, and notes thereto, the financial schedules, and the other financial and statistical data included in the Registration Statement or the Prospectus or omitted therefrom, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Act and the Rules and Regulations;
(viii) The statements contained in the Prospectus under the captions "PROSPECTUS SUMMARY," "RISK FACTORS," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCAL CONDITION AND RESULTS OF OPERATION," "BUSINESS," "MANAGEMENT" AND "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS," are accurate, complete and fair insofar as they relate to contracts and documents described therein. To such counsel's knowledge, there are no contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that were not filed or disclosed as required;
(ix) Except as disclosed in the Prospectus, to such counsel's knowledge, there is not pending or threatened or contemplated against the Company, or involving the properties and or business of the Company conform Company, any action, suit, proceeding, inquiry, investigation, litigation or governmental proceeding (including those having jurisdiction over environmental or similar matters), domestic or foreign, that (A) is required to the description thereof contained be disclosed in the Registration Statement and is not so disclosed, (B) questions the Prospectusvalidity of the capital stock of the Company or the validity or enforceability of this Agreement, (C) questions the validity of any action taken or to be taken by the Company pursuant to or in connection with this Agreement, or (D) could materially adversely effect the present or prospective ability of the Company to perform its obligations under this Agreement or result in a Material Adverse Effect;
(x) to such counsel's knowledge, the The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act, nor, by receipt of the proceeds from its sale by it of the Shares pursuant to this Agreement, will the Company become or be deemed to be an "investment company" under such Act;
(xi) No transfer taxes are required to be paid in breach ofconnection with the sale and delivery of the Common Stock by the Company to the Underwriters hereunder;
(xii) The certificates evidencing the Rights to be distributed to the Safeguard Shareholders and the shares of Common Stock to be delivered hereunder are in due and proper form under Delaware law;
(xiii) All of the Rights have been duly authorized and validly issued, or and, when issued and distributed as set forth in default underthe Prospectus, any term or provision will be legally issued and valid and binding obligations of the Company having the rights summarized in the Prospectus; and none of such Rights will have been issued in violation of the preemptive rights of any licensesecurity holders of the Company arising as a matter of law or under or pursuant to the Company's Certificate of Incorporation, contractas amended, indenturethe Company's By- Laws, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed moneyas amended, or any other agreement or instrument to which the Company is a party or by which any it is bound. In addition, such opinion shall contain statements substantially to the following effect: In the course of the Company may be bound or to which preparation by the property or assets (tangible or intangible) of any of the Company iC
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriter, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriter shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's opinion, is material, or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's reasonable opinion, is material, or omits to state a fact which, in the RepresentativeUnderwriter's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriter shall have received from Underwriters' Counsel, Underwriter's Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Underwriter may request and Underwriters' Underwriter's Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.C. ("PDR&H"), counsel to the Company, dated the Closing Date, addressed to the Underwriters Underwriter and in form and substance satisfactory to Underwriters' Underwriter's Counsel, to the effect that:
(i) the Company (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Capital Stock," and to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Underwriter's Warrant Agreement, and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iThe
Appears in 1 contract
Sources: Underwriting Agreement (Infinite Technology Group LTD)
Conditions of the Underwriters’ Obligations. The obligations obligation of the ------------------------------------------- Underwriters hereunder shall be to purchase and pay for the Securities are subject to the continuing accuracy of the representations and warranties contained herein, to the performance by the Issuers of their covenants and agreements hereunder and in satisfaction of the Company herein following additional conditions:
(a) If the registration statement originally filed with respect to the Securities, or any amendment thereto filed prior to the Closing Date has not been declared effective as of the time of execution hereof, such registration statement or such amendment shall have been declared effective not later than 10:00 a.m., New York City time, on the date hereof and as of on which the Closing Date and each Option Closing Dateamendment to such registration statement originally filed with respect to the Securities, if any, as if they had been made on and as of or to the Closing Date or each Option Closing DateRegistration Statement, as the case may be; , containing information regarding the accuracy on and as initial public offering price of the Closing Date or Option Closing DateSecurities has been filed with the Commission, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later time and date and time as shall be have been consented to in writing by the RepresentativeUnderwriters; if required, and, at Closing Date the Prospectus and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed in accordance with Rule 424(b) under the Act; no amendment to the Registration Statement shall have been filed to which the Underwriters have objected pursuant to Section 5(a) hereto; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto or the qualification of the Indenture under the Trust Indenture Act shall have been issued and no proceedings for that purpose shall have been instituted or to the knowledge of the Issuers or the Underwriters, shall be pending threatened or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsCommission.
(b) The Representative Underwriters shall not have advised received an opinion in form and substance satisfactory to the Company that Underwriters, dated the Registration StatementClosing Date, or any amendment theretoof ▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Karabell LLP, contains an untrue statement of fact whichspecial counsel to the Issuers, substantially in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement form of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingExhibit C hereto.
(c) The Underwriters shall have received an opinion in form and substance satisfactory to the Underwriters, dated the Closing Date, of Irell & ▇▇▇▇▇▇▇ LLP, counsel to the Issuers, substantially in the form of Exhibit D hereto.
(d) The Underwriters shall have received an opinion in form and substance satisfactory to the Underwriters, dated the Closing Date, of [ ], Pennsylvania counsel to Alliance, substantially in the form of Exhibit E hereto.
(e) The Underwriters shall have received an opinion in form and substance satisfactory to the Underwriters, dated the Closing Date, of [ ], Georgia counsel to the Issuers, substantially in the form of Exhibit F hereto.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, with respect to the sufficiency of certain corporate proceedings and other legal matters relating to this Agreement, and such other related matters as the Underwriters may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(g) The Underwriters shall have received from Ernst & Young LLP, independent public accountants for Alliance, letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received a certificate, dated the Closing Date, of the Chief Financial Officer of Alliance, to the effect that the representations and warranties contained in Section 2(o) of this Agreement are true and correct in all material respects as if made on and as of the Closing Date.
(i) The representations and warranties of the Issuers contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made as to a certain date); and the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(j) The Recapitalization and the transactions contemplated thereby shall have been consummated concurrently with the Offering.
(k) The Credit Agreement shall have been executed and delivered by all parties thereto.
(l) Subsequent to the respective dates of the most recent financial statements of Alliance contained in the Prospectus, there shall have been no material adverse change in the business, condition (financial or other) results of operations or prospects of Alliance and the Subsidiaries taken as a whole (a "Material Adverse Change") or any development which could ----------------------- reasonably be expected to result in a Material Adverse Change, except as set forth in, or contemplated by, the Prospectus.
(m) None of the issuance and sale of the Securities pursuant to this Agreement or the other Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or the Transactions before any court or governmental authority.
(n) The Underwriters shall have received certificates, dated the Closing Date, of the appropriate officers of Alliance and each of the Guarantors as to such person, to the effect that:
(A) The representations and warranties of such person in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and such person has performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on its part to be performed or satisfied at or prior to the Closing Date;
(B) No stop order suspending the effectiveness of the Registration Statement or any amendment thereto or the qualification of the Indenture under the Trust Indenture Act has been issued, and no proceedings for those purposes have been instituted or, to the best of such person's knowledge, are threatened or contemplated by the Commission; and
(C) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change except as set forth in or contemplated by the Prospectus.
(o) On the Closing Date, Alliance shall have, to the extent a party thereto, complied in all material respects with all agreements and covenants in all documents contemplated by the Transactions and satisfied all conditions specified therein to be complied with or performed at or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization and each of the Company, documents contemplated by the validity of the Securities, the Registration Statement, the Prospectus Transactions shall be in full force and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matterseffect.
(dp) At On the Closing Date, the Underwriters shall have received copies of all certificates, documents and opinions, reasonably requested by the favorable opinion Underwriters, delivered by Alliance or any of Stursberg & Veithits counsel and such other certificates, counsel documents and opinions reasonably obtainable by Alliance pursuant to the C▇▇▇▇▇y, dated Transactions. On or before the Closing Date, addressed the Underwriters shall have received such further documents, opinions, certificates and schedules or instruments relating to the Underwriters business, corporate, legal and in form financial affairs of Alliance and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing Newco as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licensesthey shall have theretofore reasonably requested. All such opinions, certificates, franchises and permits of and from all governmental letters, schedules, documents or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary instruments delivered pursuant to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in will comply with the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform provisions hereof only if they are reasonably satisfactory in all material respects to all statements with respect thereto contained in the Registration Statement and Underwriters. The Issuers shall furnish to the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being Underwriters such holders; and none conformed copies of such securities were issued opinions, certificates, letters, schedules, documents and instruments in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York quantities as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyshall reasonably request.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Sources: Underwriting Agreement (Alliance Imaging of Michigan Inc)
Conditions of the Underwriters’ Obligations. The obligations obligation of each Underwriter to purchase and pay for the Underwriters hereunder shall be Shares set forth opposite the name of such Underwriter in Schedule I is subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholders made pursuant to the provisions hereof; and the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder agreements hereunder; and to the following further additional conditions:
(a) The If the Company has elected to rely on Rule 430A under the Act, the Registration Statements shall have been declared effective, and the Prospectus (containing the information omitted pursuant to Rule 430A) shall have been filed with the Commission not later than the Commission's close of business on the second business day following the date hereof or such later time and date to which the Underwriters shall have consented; if the Company does not elect to rely on Rule 430A, the Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become been declared effective not later than 12:00 p.m.11:00 A.M., New York time, on the date of this Agreement hereof or such later time and date to which the Underwriters shall have consented; if required, in the case of any changes in or amendments or supplements to the Prospectus in addition to those contemplated above, the Company shall have filed such Prospectus as amended or supplemented with the Commission in the manner and within the time as shall be consented to in writing period required by Rule 424(b) under the Representative, and, at Closing Date and each Option Closing Date, if any, Act; no stop order suspending the effectiveness of the each Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Underwriters, shall be pending or contemplated by the Commission Commission; and the Company shall have complied in all material respects with any request on the part of the Commission for additional information shall have been complied with (to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective be included in each Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative shall not have advised the Company that the Neither Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from counsel to the Underwriters' Counsel, such opinion or opinions with respect to the organization issuance and sale of the CompanyFirm Shares, the validity of the Securities, the each Registration Statement, Statement and the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and Underwriters' Counsel such counsel shall have received such papers documents and other information as they request to enable them to pass upon such matters.
(d) At On the Closing Date, Date the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇yopinion, dated the Closing Date, addressed of Nixon, Hargrave, Devans & ▇▇▇▇▇ LLP, counsel to the Underwriters and in form and substance satisfactory to Underwriters' Company ("Company Counsel"), to the effect thatset forth below:
(i) Each of the Company and its U.S. Subsidiaries (A) has been is duly organized and is validly existing as a corporation or limited partnership in good standing under the laws of its jurisdiction, and (B) has all requisite corporate jurisdiction of formation with full power and authorityauthority (corporate, partnership and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary other) to own or lease its properties and to conduct its business as described in the Prospectus; the Company , and (B) is not duly qualified to do business as a foreign corporation entity and is in any good standing in each jurisdiction (to such counsel's knowledge, there being no jurisdiction x) in which failure to so qualify would have a material adverse effect on the Company); to conduct of its business requires such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state qualification and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances (y) in which they were made.it owns or leases property (in each case except for those jurisdictions in which the failure so to qualify can be cured without having a Material Adverse Effect);
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the The Company has a duly authorized, issued and outstanding capitalization authorized capital stock as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; the securities of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws outstanding shares of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has Common Stock have been duly authorized and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold issued by the Company, the Underwriters are fully paid and the holders of the Representative's Warrantnonassessable, as the case may be, will acquire good and marketable title to the Securities are free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, andpreemptive or, to such counsel's knowledge, after due inquiryany other rights to subscribe for any of the Shares; the Company has duly authorized the sale of the Shares to be sold by it hereunder; such Shares, are validly issued, fully paid and nonassessable and conform in all material respects to the description thereof contained in the Prospectus and are not be subject to any preemptive, or, to such counsel's knowledge, any subscription or other similar rights; and the Shares are listed on The New York Stock Exchange;
(iii) Such counsel has been advised by the Commission that each Registration Statement is effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and such counsel has no knowledge that any stop order suspending the use effectiveness of the Preliminary Prospectus, the either Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement amendment thereto has been issued and no issued, or that proceedings for that purpose have been instituted or instituted, are pending or are threatened or contemplated under the Acts;
(v) Act; each of the Preliminary Prospectus, the Registration Statement, Statement and each amendment thereto and the Prospectus and, if any, each amendment and any amendments or supplements supplement thereto (other than except for the financial statements statements, schedules and other financial and statistical data included therein, as to which no opinion such counsel need be rendered) comply not express any opinion), complied as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to ; the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described descriptions contained and summarized in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment theretodocuments, are accurate and fairly represent in all material respects and fairly represent the information required to be shown by Form N-5the Act and the Rules and Regulations with respect to such contracts and other documents; (C) there such counsel is not pending aware of any contracts or threatened against documents which are required by the Company Act to be described in the Registration Statements or the Prospectus or to be filed as exhibits to the Registration Statements which are not described or filed as required by the Act and the Rules and Regulations; such counsel is not aware of any action, arbitration, suit, proceedingproceeding or investigation before or by any court, inquiryregulatory body, investigation, litigation, or administrative agency or any other governmental agency or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is and of a character required to be disclosed in the Registration Statement Statements or the Prospectus which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as requiredtherein; and (E) except as disclosed the statements set forth under the headings "Description of Capital Stock" and "Certain Anti-Takeover Provisions," in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to insofar as such counsel) in which an adverse decision which may result in statements constitute a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations summary of the Companylegal matters, which could materially adversely affect the present documents or prospective ability proceedings referred to therein, provide an accurate summary of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreementsuch legal matters, documents and proceedings;
(viiiv) the The Company has full legal right, power power, and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for thereinherein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and ;
(v) Upon the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company Shares and payment therefor in accordance with its the terms of this Agreement and assuming that each of the Underwriters which has severally purchased such Company Shares acquires such Company Shares without notice of any adverse claim (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws within the meaning of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawUniform Commercial Code), such Underwriter will have acquired all of the rights of the Company to such Company Shares and neither will have acquired title to such Company Shares free and clear of any adverse claim.
(vi) None of the Company's execution or delivery of this Agreement and of the Representative's WarrantAgreement, its performance hereunder and thereunderhereof, its consummation of the transactions contemplated herein, herein or its application of the conduct net proceeds of its business as described the offering in the Registration Statement, manner set forth under the Prospectus, and any amendments or supplements thereto, caption "Use of Proceeds," conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect charge or other restriction or equity of any kind whatsoever encumbrance upon, any property or assets (tangible or intangible) of the Company or any of its U.S. Subsidiaries pursuant to the terms of, (A) of the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan Company or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties U.S. Subsidiaries; the terms of any agreement or assets (tangible or intangible) other document which is or may be subject, an exhibit to either Registration Statement or any indebtedness, or (C) document incorporated by reference in either Registration Statement; any statute, judgment, decree, order, rule or regulation applicable to of any regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their respective activities or properties; or any judgment, decree or order, known to such counsel after reasonable investigation, of any government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, having jurisdiction over such jurisdiction; and such counsel is not aware that any consent, approval, authorization or order of any court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, has been or is required for the Company's performance of this Agreement or the consummation of the transactions contemplated hereby, except such as have been obtained under the Act or may be required under state securities or blue sky laws in connection with the purchase and distribution by the Underwriters of the Shares;
(vii) The issued shares of capital stock of each of the U.S. Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other liens, encumbrances, claims or security interests; and
(viii) Such counsel is not aware of any claims, except those described in the Prospectus, which have been asserted against the Company or any of its activities Subsidiaries by any person challenging or propertiesquestioning the validity or effectiveness of any Rights used in, except for conflictsor necessary for, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except conduct of its business as described in the Prospectus or alleging that the business and operations of the Company and its Subsidiaries using such Rights infringe on the rights of any person. In addition, such counsel shall state that in the course of the preparation of the Registration Statements and the Prospectus, no consent, approval, authorization or order, such counsel has participated in conferences with officers and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection representatives of the Company and with the issuance Company's independent public accountants, at which conferences such counsel made inquiries of such officers, representatives and accountants and discussed the contents of the Securities pursuant to Registration Statements and the Prospectus and (without taking any further action to verify independently the statements made in the Registration Statement, the performance of this Agreement Statements and the transactions contemplated hereby;
(ixProspectus and, except as stated in the foregoing opinion, without assuming responsibility for the accuracy, completeness or fairness of such statements) nothing has come to such counsel's knowledgeattention that causes such counsel to believe that (i) either Registration Statement as of the date it is declared effective and as of the Closing Date, or (ii) the properties Prospectus as of the date thereof and business as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need not express any opinion with respect to the financial statements, schedules and other financial data included in either Registration Statement or the Prospectus). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company conform and public officials. In addition, where an opinion is qualified by "the best knowledge of such counsel," that such counsel is "not aware of" or other words of similar import, such opinion is based solely upon the conscious awareness of facts or other information by the attorneys at such counsel's firm who have had active involvement in the transactions contemplated by this Agreement and such opinion shall not imply that such counsel has undertaken any independent investigation to determine whether or not such fact, circumstance or other information is true or exists. References to the description thereof Registration Statements and the Prospectus in this paragraph (d) shall include any amendment or supplement thereto at the date of such opinion.
(e) On or prior to the Closing Date, counsel to the Underwriters shall have been furnished such documents, certificates and opinions as they may reasonably request in order to evidence the accuracy, completeness or satisfaction of any of the representations or warranties of the Company or the Selling Stockholders, or conditions herein contained.
(f) At the time that this Agreement is executed by the Company the Underwriters shall have received from Ernst & Young LLP a letter as of the date this Agreement is executed by the Company in form and substance satisfactory to you (the "Original Letter"), and on the Closing Date the Underwriters shall have received from such firm a letter dated the Closing Date stating that, as of a specified date not earlier than five (5) days prior to the Closing Date, nothing has come to the attention of such firm to suggest that the statements made in the Original Letter are not true and correct.
(g) On the Closing Date, the Underwriters shall have received a certificate, dated the Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company to the effect that each of such persons has carefully examined the Registration Statements and the Prospectus and any amendments or supplements thereto and this Agreement, and that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date, and the Company has complied with all agreements and covenants and satisfied all conditions contained in this Agreement on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) To the best knowledge of each of such persons, no stop order suspending the effectiveness of either Registration Statement has been issued, and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened under the Act, and any and all filings required by Rule 424 and Rule 430A have been timely made. References to the Registration Statements and the Prospectus in this paragraph (g) are to such documents as amended and supplemented at the date of the certificate.
(h) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus;
Prospectus up to and including the Closing Date there has not been (xi) any change or decrease specified in the letter or letters referred to such counsel's knowledge, the Company is not in breach of, paragraph (f) of this Section 7 or in default under, (ii) any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed moneychange, or any other agreement development involving a prospective change, in the business or instrument to which the Company is a party or by which any properties of the Company may be bound or its Subsidiaries which change or decrease in the case of clause (i) or change or development in the case of clause (ii) makes it impractical or inadvisable in the Underwriters' reasonable judgment to which proceed with the property public offering or assets (tangible or intangible) of any the delivery of the Company Shares as contemplated by the Prospectus.
(i) On the Closing Date, the Underwriters shall have received the opinion, dated the Closing Date, of Nixon, Hargrave, Devans & ▇▇▇▇▇ LLP in its capacity as counsel for the Selling Stockholders, to the effect set forth below:
(i) Each Selling Stockholder has full legal right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver in the manner provided he
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to purchase Shares at the Closing Time or on the Date of Delivery, as applicable, are subject, in the Underwriter's sole discretion, to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of at the Closing Time and on the Date and each Option Closing Dateof Delivery, if anyas applicable, as if they had been made on and as of the Closing Date or each Option Closing Datesuch date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants covenants, agreements and obligations hereunder and to the satisfaction of the following further conditionsconditions at the Closing Time or on the Date of Delivery, as applicable:
(a) The Registration Statement which shall be in form and substance satisfactory If any amendment to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have filed prior to the Closing Time has not been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part declared effective as of the Commission for additional information shall have been complied with to the reasonable satisfaction time of Underwriters' Counsel. If execution hereof, such amendment, and if the Company has elected to rely upon Rule 430A of the Rules and Regulations462(b), the Rule 462(b) Registration Statement, shall have been declared effective not later than the earlier of: (i) 11:00 a.m., New York City time, on the date on which the amendment to the Registration Statement originally filed with respect to the Shares or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of the Shares has been filed with the Commission; and (ii) the time confirmations are sent or given as specified by Rule 462(b); and the Underwriter shall have received written notification of such effectiveness. The Prospectus that constitutes a part thereof and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A amendment or supplement thereto shall have been transmitted to filed with the Commission for filing pursuant to Rule 497 of in the Rules manner and Regulations within the prescribed time period, and prior to Closing Date period required by Rule 424(b) under the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsSecurities Act.
(b) The Representative Company shall not have advised furnish to the Underwriter at the Closing Time and on the Date of Delivery an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Company, addressed to the Underwriter and dated the Closing Time and the Date of Delivery and in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriter, stating that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(ii) To such counsel's knowledge, the Company is not in breach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under) its certificate of incorporation or by-laws.
(iii) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares, and no action by the Company's stockholders is necessary in connection with such execution, delivery and performance or such issuance and sale of the Shares; this Agreement has been duly and validly authorized, executed and delivered by the Company.
(iv) No approval, authorization, consent, license, permit, certificate or order of or filing by or with any federal or state governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby and the sale and delivery of the Shares by the Company as contemplated hereby, other than such as have been obtained or made and are in full force and effect under the Securities Act and the Securities Act Regulations and such approvals as have been obtained and are in full force and effect in connection with the approval of the listing of the Shares on Nasdaq, and except that such counsel need express no opinion in this clause (iv) as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter.
(v) The Company has an authorized capitalization as set forth in the Prospectus.
(vi) The issuance by the Company of the Shares as contemplated by this Agreement has been duly authorized by the Company and when the Shares have been issued and duly delivered against payment therefor as contemplated by this Agreement, such Shares will be validly issued, fully paid and nonassessable.
(vii) The issuance and sale of the Shares is not subject to preemptive or other similar rights arising by operation of law, under the certificate of incorporation or by-laws of the Company or, to such counsel's knowledge, under any other agreement to which the Company or any of its Subsidiaries is a party or otherwise.
(viii) To such counsel's knowledge, there are no persons with registration or other similar rights to have any equity securities, including securities that are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act, other than as set forth in the Prospectus.
(ix) The Common Stock conforms in all material respects to the description thereof contained in the Registration Statement and Prospectus.
(x) The Registration Statement has become effective under the Securities Act. No stop order preventing or suspending the effectiveness of the Registration Statement or the use of the Prospectus has been issued and no proceedings with respect thereto have been initiated or, to the best of such counsel's knowledge, pending or threatened by the Commission. Any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b).
(xi) The Registration Statement and the Prospectus, including the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and Prospectus, including the documents incorporated by reference therein, in each case as of their respective effective or issue dates (other than the financial statements and notes thereto, schedules and other financial, reserve and production data included or incorporated by reference therein or omitted therefrom, as to which such counsel is not required to express an opinion ) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations.
(xii) All descriptions in the Registration Statement of the statutes, legal and governmental proceedings and contracts and other documents fairly present the information required to be shown. To the best of such counsel's knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases, or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects.
(xiii) Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Shares by the Company and the application of the net proceeds therefrom as described in the Prospectus, will be an "investment company" or an entity "controlled by" an "investment company", as such terms are defined in the Investment Company Act. Such opinion shall be limited to the federal laws of the United States, the laws of the State of Texas, and the General Corporation Law of the State of Delaware. In addition, such counsel shall state that they have participated in conferences with officers of the Company, independent public accountants of the Company and the representatives of the Underwriter, at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus, on the basis of the foregoing, no facts have come to the attention of such counsel that lead them to believe that the Registration Statement, Statement or any post-effective amendment theretothereto (including the filing of the Company's Annual Report on Form 10-K with the Commission) at the time it became effective, contains contained an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, as of its issue date, and as of the date of such counsel's opinion, contained or any supplement thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omitted or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that, in each case, such counsel need express no view with respect to the financial statements and other financial data and reserve and production data included in the Registration Statement or Prospectus).
(c) The Company shall furnish to the Underwriter at the Closing Time and on the Date of Delivery an opinion of Onebane Law Firm, counsel for the Company, addressed to the Underwriter and dated the Closing Time and the Date of Delivery and in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriter with regard to the matters set forth in Schedule II.
(d) The Underwriter shall have received from Ernst & Young LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and the Date of Delivery, as the case may be, addressed to the Underwriter, in form and substance satisfactory to the Underwriter, relating to the financial statements of the Company and its Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(e) The Underwriter shall have received at the Closing Time and on the Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., dated the Closing Time or the Date of Delivery, addressed to the Underwriter and in form and substance satisfactory to the Underwriter.
(f) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriter shall have objected in writing.
(g) Prior to the Closing Time and the Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) the Registration Statement shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Underwriter.
(ch) On or prior Subsequent to the Closing Dateexecution of this Agreement or, if earlier, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization respective dates as of the Company, the validity of the Securities, which information is given in the Registration Statement, Statement (exclusive of any amendment thereto) and the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) no material and unfavorable change in the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company (A) has been duly organized and is validly existing its Subsidiaries taken as a corporation whole shall occur or become known (whether or not arising in good standing under the laws ordinary course of business), (ii) no transaction which is material to the Company shall have been entered into by the Company or any of its jurisdictionSubsidiaries, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described except transactions entered into in the Prospectus; ordinary course of business, (iii) neither the Company nor any Subsidiary has incurred any obligation, direct or contingent, that is not qualified material to the Company and the Subsidiaries, taken as a foreign corporation whole, except obligations incurred in the ordinary course of business, (iv) there has not been any jurisdiction change in the capital stock or outstanding indebtedness of the Company or the Subsidiaries that is material to the Company and the Subsidiaries, taken as a whole, (v) neither the Company nor any Subsidiary has declared or paid any dividend or distribution of any kind on the capital stock of the Company or such Subsidiary or (vii) neither the Company nor any Subsidiary has sustained any loss or damage (whether or not insured) to the property of the Company or such counsel's knowledge, there being no jurisdiction in Subsidiary which failure to so qualify would could have a material adverse effect on the Company); to such counsel's knowledgeassets, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, conditionearnings, prospects, properties or condition (financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets ) of the Company. The disclosures in Company and its Subsidiaries taken as a whole.
(i) When the Registration Statement concerning was declared effective, and at all times subsequent thereto up to the effects Closing Time and the Date of federalDelivery, state the Registration Statement and local lawsthe Prospectus contained all statements required to be stated therein in accordance with, rules and regulations on the Company's business as currently conducted and as contemplated are correct complied in all material respects and do not omit to state a fact necessary to make with the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledgerequirements of, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) Securities Act and the Company has a duly authorized, issued and outstanding capitalization as set forth in Securities Act Regulations; the ProspectusRegistration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state any material fact, necessary to make the statements therein not misleading; the Prospectus did not and does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under "Capitalization"which they were made, andnot misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth.
(j) The Shares shall have been approved for listing on Nasdaq.
(k) The Underwriter shall have received lock-up agreements from each director, executive officer and stockholder of the Company listed on Schedule I hereto, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect.
(l) The Underwriter shall have received at the Closing Time, a letter from ▇▇▇▇▇ ▇▇▇▇▇ Company, L.P., dated the Closing Time, in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriter.
(m) The Company will, at the Closing Time and on the Date of Delivery, deliver to the Underwriter a certificate of its Chairman of the Board and Chief Executive Officer, and its Senior Vice President and Chief Financial Officer, to the effect that the signers of such counsel's knowledge, after due inquirycertificate have carefully examined the Registration Statement, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for Prospectus and this Agreement and as described (i) the representations and warranties of the Company set forth in the Prospectus. The Securities, this Agreement are true and all other securities issued or issuable by the Company, conform correct in all material respects respects, except to all statements the extent otherwise qualified with respect thereto to materiality or material adverse effect, on and as of such date with the same effect as if made on such date, (ii) the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such date and (iii) the conditions set forth in paragraphs 6(g), (h) and (i) of this Section 6 have been satisfied, in each case as of such date.
(n) The Company shall have furnished to the Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus. All issued , the representations, warranties and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company statements contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; herein and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance performance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, covenants contained herein and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ifulfillmen
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be are subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Datecontained, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at At Closing Date and each Option Closing Date, if any, Time no stop order suspending the effectiveness of the Registration Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or shall be pending or contemplated threatened by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' CounselCommission. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the The price of the Shares Notes and any price-related other information previously omitted from the effective Registration Statement pursuant to such Rule 430A 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and 1933 Act Regulations within the prescribed time period, and prior to Closing Date Time the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and 1933 Act Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, Time the Underwriters shall have received the favorable opinion opinion, dated as of Stursberg & VeithClosing Time, counsel to the Cof ▇▇▇▇▇y▇▇▇ & Worcester LLP, dated counsel for the Closing DateCompany, addressed to the Underwriters and in form and substance satisfactory to counsel for the Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is a Maryland real estate investment trust in good standing under the laws of the State of Maryland and has the trust power and authority to carry on its business and to own and lease its properties as described in the Registration Statement and the Prospectus; each Significant Subsidiary (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) of the Company (A) has been duly organized and is validly existing as a corporation corporation, partnership, limited liability company, trust or real estate investment trust, as the case may be, in good standing under the laws of its jurisdictionjurisdiction of incorporation or organization; each Significant Subsidiary has the corporate, and partnership, limited liability company or trust (Bas applicable) has all requisite corporate power and authority, authority to carry on its business and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or and lease its properties and conduct its business as described in the Registration Statement and in the Prospectus; each of the Company and its Significant Subsidiaries is not duly qualified and is in good standing as a foreign corporation corporation, partnership, limited liability company or trust, as the case may be, authorized to do business in any jurisdiction (to such counsel's knowledge, there being no each jurisdiction in which its ownership or leasing of property requires such qualification, except where the failure to be so qualify qualified would not have a material adverse effect on the Company); to such counsel's knowledgeCompany and its subsidiaries, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business taken as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were madewhole.
(ii) to such counsel's knowledge, All of the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectusshares of beneficial interest of, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stockownership interests in, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by each of the Company, conform in all 's material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company subsidiaries have been duly authorized and validly issued and are fully paid and and, except as to subsidiaries that are partnerships or limited liability companies, non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiryexcept for the equity interests in Hallwood 95, L.P., are owned by the Company free and clear of any security interest or other adverse claim (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(iii) The Company has the requisite trust power and authority to execute, deliver and perform its obligations under this Agreement and to issue and deliver the Notes.
(iv) This Agreement and the Indenture have been duly authorized, executed and delivered by the Company.
(v) The Indenture is a valid and binding obligation of the Company enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and equitable principles; and the Indenture has been duly qualified under the 1939 Act.
(vi) The Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, will be valid and binding obligations of the Company enforceable in accordance with their terms subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and equitable principles; and the holders of the Notes are entitled to the benefit of the Indenture.
(vii) The execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (A) the Declaration of Trust or the By-laws of the Company or the charter or by-laws or other organizational documents of any Significant Subsidiary of the Company as in effect at Closing Time, (B) except as disclosed in the Prospectus, any material agreement, indenture or other instrument known to such counsel to which the Company, or any Significant Subsidiary of the Company is a party or by which any of their respective material properties is bound, or (C) any laws, administrative regulations or rulings or decrees known to such counsel to which the Company, any Significant Subsidiary of the Company or any of their material properties is subject.
(viii) No consent, approval, authorization or order of, or qualification with any United States federal, Massachusetts or Maryland court or public, governmental or regulatory agency or body having jurisdiction over the Company, any of its Significant Subsidiaries or any of their respective material properties is required for the Company's execution, delivery and performance of it obligations under this Agreement and the consummation of the transactions contemplated hereby, including the issuance, sale and delivery of the Notes, except such as have been obtained and such as may be required under foreign and state securities or "Blue Sky" laws.
(ix) The Registration Statement has become effective under the 1933 Act, and, to the knowledge of such counsel, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that such purpose have been instituted or are pending before or threatened or contemplated by the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) under the Acts;1933 Act has been made in accordance with said Rule 424(b).
(vx) To such counsel's knowledge, except as disclosed in the Registration Statement or in the Prospectus, there is not now pending or threatened, any litigation, action, suit or proceeding to which the Company or any of its subsidiaries is or will be a party before or by any court or governmental agency or body, which (A) might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects or properties of the Company and its subsidiaries, taken as a whole, or (B) might materially and adversely affect the property or assets of the Company and its subsidiaries, taken as a whole, or (C) concerns the Company or any of its subsidiaries and is required to be disclosed in the Prospectus, or (D) could adversely affect the consummation of the transactions contemplated by this Agreement and the issuance of the Notes; to such counsel's knowledge, no contract or other document is required to be described in the Registration Statement or in the Prospectus that is not described therein or is required to be filed as an exhibit to the Registration Statement that is not so filed.
(xi) Except as otherwise disclosed in the Prospectus, to such counsel's knowledge, neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or other organizational documents, as in effect at Closing Time, or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other material agreement, indenture or instrument to which the Company or any of its subsidiaries is a party or by which any of their respective properties or assets is bound, except for any such violations or defaults that would not in the aggregate result in a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole.
(xii) To such counsel's knowledge, each of the Preliminary ProspectusCompany and its Significant Subsidiaries has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (together, "permits"), including, without limitation, under any applicable Environmental Law, as are necessary to own, lease and operate its properties and to engage in the business currently conducted by it, except such permits as to which the failure to own or possess will not in the aggregate have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole.
(xiii) The Registration Statement, Statement and the Prospectus and any supplements or amendments or supplements thereto (other than except for the financial statements and the notes thereto and the schedules and other financial and statistical data included thereinor incorporated by reference therein and the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act, as to which no opinion such counsel need be renderednot express any opinion) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations1933 Act.
(vixiv) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required Each document incorporated by the Acts to be described reference in the Registration Statement and in the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial data included or incorporated by reference therein, as to which such counsel need not express any opinion) complied as to form when filed as exhibits to with the Registration Statement other than those described Commission in all material respects with the Registration Statement requirements of the 1934 Act.
(or xv) To the extent required to be filed under described therein, the Exchange Act if upon such filing they would be incorporated, Notes conform in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport all material respects to be copies; (B) the descriptions in the Registration Statement and the Prospectus.
(xvi) The statements (a) in the Base Prospectus under the captions "Description of Debt Securities", "Description of Common Shares", "Description of Certain Provisions of Maryland Law and any supplement of our Declaration of Trust and Bylaws" and (b) in the Prospectus Supplement under the captions "Description of the Notes" and "Material Federal Income Tax Considerations" and (c) in Item 1 of the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003 under the captions "Federal Income Tax Considerations" and "ERISA Plans, ▇▇▇▇▇ Plans and Individual Retirement Accounts" in each case insofar as they purport to summarize matters arising under Massachusetts or amendment thereto Maryland law or the federal law of contracts and other the United States, or provisions of documents to which the Company is a party or by which it is bound, including any document specifically referred to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment theretotherein, are accurate in all material respects and fairly represent the information required summaries of such legal matters or provisions.
(xvii) The Company has qualified to be shown by Form N-5taxed as a real estate investment trust pursuant to Sections 856-860 of the Code for each of the fiscal years ended December 31, 1987 through December 31, 2003, and the Company's current anticipated investments and its current plan of operation will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business actual qualification of the Company which as a real estate investment trust under the Code, however, will depend upon the Company's continued ability to meet, and its meeting, through actual annual operating results and distributions, the various qualification tests imposed under the Code.
(1xviii) The Company is not required to register as an "investment company" under the 1940 Act.
(xix) The Advisor (A) is required to be disclosed a limited liability company duly organized, validly existing and in good standing under the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity laws of the capital stock State of Delaware, and (B) has the Company or this Agreement or the Representative's Warrant or of any action taken or requisite limited liability company power and authority to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be conduct its business as described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a own and operate its material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;.
(viixx) the Company has full legal right, power and authority to enter into this The Advisory Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement parties thereto and constitutes the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company parties thereto, enforceable against the Company in accordance with its terms terms, except (except a) as such enforceability may be limited by applicable the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws of general application relating to or affecting enforcement the rights or remedies of creditors' rights , (b) as limited by the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (c) insofar as the application enforceability of equitable principles the indemnity and contribution provisions contained in any action, legal or equitable, and except as rights to indemnity or contribution such agreement may be limited by applicable law)federal or state securities laws and the public policy underlying such laws.
(xxi) Although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and neither does not assume any responsibility for, the Company's execution accuracy or delivery of this Agreement and completeness of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any discussion of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets contents thereof (tangible or intangible) including review and discussion of the Company pursuant to the terms of, (A) the certificate contents of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or all documents incorporated by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained reference in the Registration Statement and the Prospectus;
), and nothing has come to the attention of such counsel that has caused them to believe that the Registration Statement (xincluding the documents incorporated by reference therein) at the time the Registration Statement became effective, or the Prospectus, as of its date and as of Closing Time, as the case may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that any amendment or supplement to the Prospectus, as of its respective date, and as 18 of Closing Time, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel's knowledgecounsel need express no view with respect to the financial statements and the notes thereto and the schedules and other financial data included or incorporated by reference in the Registration Statement or in the Prospectus or the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act.) In rendering their opinion as aforesaid, ▇▇▇▇▇▇▇▇ & Worcester LLP may rely upon an opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ LLP as to matters governed by Maryland law, PROVIDED that such reliance is expressly authorized by such opinion and a copy of such opinion is delivered to the Underwriters and is, in form and substance, satisfactory to the Representatives and counsel for the Underwriters. In addition, in rendering such opinion, such counsel may state that their opinion as to laws of the State of Delaware is limited to the Delaware General Corporation Law, the Delaware Revised Uniform Limited Partnership Act and the Delaware Limited Liability Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument Act and that their opinion with respect to which the Company is a party or by which any qualification of the Company may and its subsidiaries to do business in jurisdictions other than their respective jurisdictions of organization is based solely upon certificates to such effect issued by an appropriate official of the applicable jurisdictions. The opinion of ▇▇▇▇▇▇▇ LLP described in the paragraph above shall be bound or rendered to which the property or assets (tangible or intangible) of any Underwriters at the request of the Company iand shall so state therein.
(c) The Underwriters shall have received at Closing Time an opinion, dated as of Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, as to the matters referred to in clauses (iv), (v), (vi), (ix), (xiii), (xv) and (xxi) of the foregoing paragraph (b). In giving such opinion with respect to the matters covered by clause (xxi), such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and the Prospectus and any amendments or supplements thereto and review and discussion of the contents the
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as the Selling Stockholders of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, the Selling Stockholders or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company and each Selling Stockholder shall have complied with any request on the part of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(1) The Representatives shall have been complied with received an opinion, dated the Firm Closing Date, of Hutc▇▇▇▇, ▇▇ee▇▇▇ & ▇itt▇▇▇, ▇ Professional Corporation, counsel for the Company, to the reasonable satisfaction effect that:
(i) the Company and each of Underwriters' Counsel. If its subsidiaries which is organized in the United States (the "U.S. Subsidiaries") have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation;
(ii) the Company and each of the U.S. Subsidiaries have the corporate power and authority to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus, and the Company has elected the corporate power and authority to rely upon Rule 430A enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of each of the Rules U.S. Subsidiaries have been duly authorized and Regulationsvalidly issued, are fully paid and nonassessable and, except as otherwise set forth in the Prospectus, are owned beneficially by the Company free and clear of any perfected security interests or, to the knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims;
(iv) after giving effect to the amendment to the Company's Articles of Organization described in the Prospectus, the price Company's authorized, issued and outstanding capitalization is as set forth in the Prospectus; all of the Shares issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable federal and state securities laws and were not issued in violation of or subject to any pricepreemptive rights or other rights to subscribe for or purchase securities; the Securities to be issued by the Company pursuant to this Agreement have been duly authorized by all necessary corporate action of the Company and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Securities have been duly included for trading on the Nasdaq National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities under the Articles of Organization or By-related information previously omitted from Laws, as in effect on the effective date of this opinion, of the Company, or under any statute, rule or regulation, or under any agreement known to such counsel; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement pursuant to any agreement known to such Rule 430A shall counsel, other than those holders whose Securities are included in the Registration Statement or who have waived such rights;
(v) the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the statements set forth under the heading "Management -- Stock Option and Stock Purchase Plans";
(vi) the execution and delivery of this Agreement have been transmitted duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(vii) (A) to the Commission for filing knowledge of such counsel after due inquiry consisting solely of inquiry of the executive officers of the Company and a docket search in state courts in Massachusetts and federal courts sitting in Massachusetts, no legal or governmental proceedings are pending to which the Company or any of the U.S. Subsidiaries is a party or to which the property of the Company or any of the U.S. Subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the knowledge of such counsel, no such proceedings have been threatened against the Company or any of the U.S. Subsidiaries or with respect to any of their respective properties and (B) no contract or other document known to such counsel is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) the issuance, offering and sale of the Securities to the Underwriters by the Company pursuant to Rule 497 this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or (B) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel all of which may be listed in an exhibit to such counsel's opinion, to which the Company or any of the U.S. Subsidiaries is a party or by which the Company or any of the U.S. Subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of the U.S. Subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or U.S. Subsidiaries;
(ix) such counsel has been informed by the Commission that the Registration Statement is effective under the Act; any required filing of the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and Regulations 424(b) has been made in the manner and within the prescribed time periodperiod required by Rules 434 and 424(b); such counsel has been informed by the Commission that no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and, to such counsel's knowledge, no proceedings for that purpose have been instituted or threatened or, are contemplated by the Commission;
(x) the Registration Statement originally filed with respect to the Securities and prior each amendment thereto, any Rule 462(b) Registration Statement and the Prospectus (in each case, other than the financial statements and other financial information contained therein, as to Closing Date which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder; and
(xi) if the Company shall have provided evidence satisfactory elects to rely on Rule 434, the Representative Prospectus is not "materially different", as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time of such timely filing, its effectiveness or a an effective post-effective amendment providing thereto (including such information that is permitted to be omitted pursuant to Rule 430A). Such counsel shall also state that they have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative shall not have advised the Company no reason to believe that the Registration Statement, or as of its effective date, contained any amendment thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any supplement thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omitted or omits to state a material fact which, necessary in the Representative's opinion, is material and is required to be stated therein or is necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c2) On or prior to The Representatives shall have received an opinion, dated the Firm Closing Date, of Hutc▇▇▇▇, ▇▇ee▇▇▇ & ▇itt▇▇▇, ▇▇unsel for the Representative Selling Stockholders, to the effect that:
(i) each Selling Stockholder has full corporate, partnership or trust power, as applicable, to enter into this Agreement, the Custody Agreement and the Power-of-Attorney and to sell, transfer and deliver the Securities being sold by such Selling Stockholder hereunder in the manner provided in this Agreement and to perform its obligations under the Custody Agreement; if such Selling Stockholder is a corporation, the execution and delivery of this Agreement, the Custody Agreement and the Power-of-Attorney have been duly authorized by all necessary corporate action of each Selling Stockholder; this Agreement, the Custody Agreement and the Power-of-Attorney have been duly executed and delivered by each Selling Stockholder; the Custody Agreement and the Power-of-Attorney are the legal, valid, binding and enforceable instruments of each Selling Stockholder, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(ii) when the Underwriters obtain control of the Securities to be sold by the Selling Stockholders, assuming that the Underwriters purchased such Securities for value and without notice of any adverse claim to such Securities within the meaning of Section 8-102 of the Uniform Commercial Code as in effect in the Commonwealth of Massachusetts, the Underwriters will have acquired all rights of the Selling Stockholders in such Securities free of any adverse claim;
(iii) the sale of the Securities to the Underwriters by each Selling Stockholder pursuant to this Agreement, the compliance by such Selling Stockholder with the other provisions of this Agreement, the Custody Agreement and the consummation of the other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of such Selling Stockholder's properties are bound, or the charter documents or by-laws of such Selling Stockholder or any of its subsidiaries or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Stockholder. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials, the Selling Stockholders and representations and warranties of the Company and the Selling Stockholders contained herein, in the Custody Agreements and in the Powers of Attorney.
(3) The Representatives shall have received opinions of counsel, dated the Firm Closing Date, from local counsel to each of the Company's subsidiaries organized outside of the United States in form and substance satisfactory to the Representatives and counsel to the Representatives. References to the Registration Statement and the Prospectus in this paragraph (b) shall include any amendment or supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated the Firm Closing Date, of Test▇, ▇▇rw▇▇▇ & ▇hib▇▇▇▇▇, ▇▇P, counsel for the Underwriters' Counsel, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the Firm Securities, the Registration StatementStatement and the Prospectus, the Prospectus and such other related matters as the Representatives may request reasonably require, and Underwriters' Counsel the Company shall have received furnished to such papers and information counsel such documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters.
(d) At The Representatives shall have received from Coopers & Lybr▇▇▇ ▇.▇.P. a letter or letters dated, respectively, the date hereof and the Firm Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselthe Representatives, to the effect that:
(i) they are independent accountants with respect to the Company (A) has been duly organized and is validly existing as a corporation in good standing under its consolidated subsidiaries within the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets meaning of the Company. The disclosures in Act and the Registration Statement concerning the effects of federal, state and local laws, applicable rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.thereunder;
(ii) to such counsel's knowledgein their opinion, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued audited consolidated financial statements and outstanding capitalization as set forth in the Prospectus, schedules examined by them and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained included in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently Prospectus comply in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the applicable accounting requirements of the Acts Act and the Rules related published rules and Regulations.regulations;
(viiii) on the basis of a reading of the latest available interim unaudited consolidated financial statements of the Company, a reading of the unaudited amounts for revenues, cost of revenues, net income before income taxes and total and per share amounts of net income as of and for the three months ended September 30, 1997 and of the unaudited consolidated financial statements of the Company and its consolidated subsidiaries for the periods from which such amounts are derived, carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the best comments set forth in this paragraph (iii), a reading of such counsel's knowledgethe minute books of the stockholders, the board of directors and any committees thereof of the Company and each of its consolidated subsidiaries, and inquiries of certain officials of the Company and its consolidated subsidiaries who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that:
(A) there are no agreements, contracts or other documents required by the Acts to be described unaudited consolidated financial statements of the Company included in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described do not comply in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate form in all material respects and fairly represent with the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business applicable accounting requirements of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement Act and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order related published rules and regulations thereunder or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is are not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iconformity with generally accepted accounting principles
Appears in 1 contract
Sources: Underwriting Agreement (Mercury Computer Systems Inc)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Securityholders contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Firm Closing Date, to the accuracy of the statements of the Company's officers and the Selling Securityholders made pursuant to the provisions hereof, to the performance by the Company and the Selling Securityholders of their respective covenants and agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed prior to the Firm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or each Option Closing Datesuch amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been declared effective not later than the earlier of (i) 11:00 A.M., New York City time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be; , containing information regarding the accuracy on and as public offering price of the Closing Date Securities has been filed with the Commission and (ii) the time confirmations are sent or Option Closing Dategiven as specified by Rule 462(b)(2) or, if any, of the statements of the officers of the Company made pursuant with respect to the provisions hereof; Original Registration Statement, such later time and the performance date as shall have been consented to by the Company on Representatives; if required, the Prospectus or any Term Sheet that constitutes a part thereof and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, any amendment or supplement thereto shall have become effective not later than 12:00 p.m., New York time, on been filed with the date of this Agreement or such later date Commission in the manner and within the time as shall be consented to in writing period required by Rules 434 and 424(b) under the Representative, and, at Closing Date and each Option Closing Date, if any, Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains received an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in dated the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Firm Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CShum▇▇▇▇, ▇y▇op & Kend▇▇▇▇, dated ▇▇unsel for the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselCompany, to the effect that:
(i) the Company (A) has and each Dental Entity have been duly organized and is are validly existing as a corporation corporations in good standing under the laws of its jurisdictiontheir respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company;
(ii) the Company and (B) has all requisite each Dental Entity have corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its their respective properties and conduct its business their respective businesses as described in the Registration Statement and the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, and the Company has not received any notice of proceedings relating corporate power to enter into this Agreement and to carry out all the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state terms and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit provisions hereof to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entitybe carried out by it;
(iii) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, nonassessable and are were not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to the best knowledge of such counsel's knowledge, agreement, document other rights to subscribe for or instrument, purchase securities; the Firm Securities have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable and conform nonassessable; the Firm Securities have been duly included for quotation on the Nasdaq National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or, to the description thereof contained in the Prospectus; the holders thereof will not be subject best knowledge of such counsel, to other rights to subscribe for any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities; and, (B) to the purchase by the Underwriters best knowledge of such counsel, no holders of securities of the Securities from Company are entitled to have such securities registered under the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.Registration Statement;
(iv) the Registration Statement is effective statements set forth under the Acts, and, if applicable, filing heading "Description of all pricing information has been timely made Capital Stock" in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial insofar as such statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) summarize the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity provisions of the capital stock of the Company or this Agreement or Company, provide a summary of such material provisions to the Representative's Warrant or of any action taken or to be taken extent required by the Company pursuant to or in connection with any of Act, and the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in statements set forth under the Prospectus is not described as required; headings "Business - Services and (E) except as disclosed Support Agreement," "Business - Governmental and State Regulations" and "Certain Transactions" in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to insofar as such counsel) in which an adverse decision which may result in statements constitute a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations summary of the Companyagreements and matters referred to therein, which could materially adversely affect provide a summary of such agreements and matters to the present or prospective ability of extent required by the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementAct;
(viiv) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) have been duly authorized by all necessary corporate action of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ihas been duly executed
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of each of the Company and Ajax herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by each of the Company and Ajax on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.9:30 a.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Common Stock, the price of the Convertible Preferred Stock and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative Representatives shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of each of the CompanyCompany and Ajax, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request and Underwriters' Counsel shall have received such papers and information as they reasonably request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & Ballon LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) i. the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledgeand, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to such counsel's knowledge. except as described in the Prospectus, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) . the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION", and, to such counsel's knowledge, after due inquiry, and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representatives' Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representatives' Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representatives' Warrants and the shares of Convertible Preferred Stock constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement of the Firm Securities and the Representative's Warrant of Option Securities and the Securities Representatives' Warrants to be sold by the Company, the Underwriters and the holders of the Representative's WarrantRepresentatives, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representatives' Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company, and the purchase by the Representatives of the Representatives' Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement or the Representatives' Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(iv) . the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) v. each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) . to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Representatives' Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representatives' Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representatives' Warrant Agreement;
(vii) . the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Representatives' Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for therein; and each of this Agreement and the Representative's Representatives' Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentatives' Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantRepresentatives' Warrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, . no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Firm Securities and the Option Securities pursuant to the Prospectus and the Registration Statement, the issuance of the Representatives' Warrants, the performance of this Agreement and the Representatives' Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, . the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach ofhas good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in default underthe Prospectus to be owned or leased by it, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iin each case free and clear o
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Shareholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, with respect to the and the Selling Shareholders, as the case may be, as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and of the Selling Shareholders made pursuant to the provisions hereof; and the performance by the Company and the Selling Shareholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Representatives shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representative's Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Squire, Sand▇▇▇ & Veith▇emp▇▇▇ ▇.▇.P., counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.or
(ii) to the best of such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiry, Description of Capital Stock," and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities Shares, the Representative's Warrants and the Representative's Shares to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; , and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the The Representative's Warrant Warrants constitute valid and binding obligations of the Securities Company to be sold by the Companyissue and sell, the Underwriters upon exercise thereof and the holders of the Representative's Warrantpayment therefor, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.the
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) to such counsel's knowledge, there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending - 26 - 27 or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has Agreement have been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative Warrant, Representative's Warrant Agreement assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's Warrant, Warrant Agreement its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate articles of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.the
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities Shares pursuant to the Prospectus and the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement and the Representative's Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus; and the Company has good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in the Prospectus to be owned or leased by it, in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever, other than those referred to in the Prospectus and liens for taxes not yet due and payable;
(x) to the best knowledge of such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iis subject or affected; and the Company is not in violation of any term or provision of its articles of incorporation by-laws, or in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
xi) the statements in the Prospectus under "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS," "BUSINESS," "MANAGEMENT," "PRINCIPAL SHAREHOLDERS," "CERTAIN TRANSACTIONS," "DESCRIPTION OF CAPITAL STOCK," and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respects; - 28 - 29 xii) the Shares have been accepted for quotation on Nasdaq;
Appears in 1 contract
Sources: Underwriting Agreement (Skymall Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase the Notes hereunder shall be are subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall All actions required to be in form taken and substance satisfactory all filings required to be made by the Companies under the Act prior to the Representative and Underwriter's Counsel, sale of the Notes shall have become effective not later than 12:00 p.m., New York time, on been duly taken or made. At and prior to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Companies or the Underwriter, shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsCommission.
(b) The Representative Subsequent to the effective date of this Agreement, there shall not have advised occurred (i) any change, or any development involving a prospective change, in or affecting the Company that condition (financial or other), business, properties, net worth, or results of operations of the Companies, The Money Store or the Surety Provider not contemplated by the Registration Statement, which in the opinion of the Underwriter, would materially adversely affect the market for the Notes, or (ii) any amendment thereto, contains an event or development which makes any statement made in the Registration Statement or Prospectus untrue statement of fact or which, in the Representative's opinionopinion of the Companies and their counsel or the Underwriter and its counsel, is material, requires the filing of any amendment to or omits change in the Registration Statement or Prospectus in order to state a material fact which, in the Representative's opinion, is material and is required by any law to be stated therein or is necessary in order to make the statements therein not misleading, if amending or that supplementing the Prospectus, Registration Statement or any supplement thereto, contains an untrue statement of fact whichProspectus to reflect such event or development would, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light opinion of the circumstances under which they were madeUnderwriter, not misleadingmaterially adversely affect the market for the Notes.
(c) On The Underwriter shall have received on the Closing Date opinions of Squire, Sanders & Dempsey L.L.P., special Arizona ▇▇▇▇▇el ▇▇▇ ▇▇e C▇▇▇▇▇▇▇s, and Dean Blakey & Moskowitz, special counsel for the ▇▇▇▇▇▇▇▇▇, dat▇▇ ▇▇▇ ▇▇osing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(d) The Underwriter shall have received on the Closing Date an opinion of Eric R. Elwin, Esq., General Counsel of the Compa▇▇▇▇ ▇▇▇ ▇▇▇ Money Store, dated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(e) The Underwriter shall have received on the Closing Date an opinion of Rhoads & Sinon LLP, counsel for the Eligible Lend▇▇ ▇▇▇ste▇, ▇▇ted the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(f) The Underwriter shall have received on the Closing Date an opinion of counsel for Ambac Assurance Corporation (the "Surety Provider"), dated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(g) The Underwriter shall have received on the Closing Date an opinion of White & Case, Esqs., counsel for the Indenture Tr▇▇▇▇▇, dated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriter shall have received on the Closing Date an opinion or opinions of Stroock & Stroock & Lavan LLP, counsel for the Un▇▇▇▇▇▇▇er, ▇▇▇▇▇ the ▇▇▇▇ing Date, and addressed to the Underwriter, in form and scope satisfactory to the Underwriter.
(i) The Underwriter shall have received on the Closing Date from KPMG Peat Marwick LLP a letter dated the Closing Date, and in form and substance satisfactory to the Underwriter, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such specified procedures.
(i) There shall not have been, since the respective dates as of which information is given in the Registration Statement (or any amendment or supplement thereto), except as may otherwise be stated therein, any material adverse change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Companies or of The Money Store, and (ii) all the representations and warranties of the Companies and The Money Store contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriter shall have received a certificate, dated the Closing Date and signed by an executive officer of the Companies and The Money Store, to the effect set forth in this Section 6(j) and in Section 6(k) hereof.
(k) Neither of the Companies nor The Money Store shall have failed at or prior to the Closing Date to have performed or complied with any of its respective agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(l) The Underwriter shall have received by instrument dated the Closing Date (at the option of the Underwriter), in lieu of or in addition to the opinions referred to in clauses (c) through (h) of this Section (6), the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents or to Moody's Investors Service, Inc. ("Moody's") and S▇▇▇▇▇▇▇ & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. ("Standard & Poor's").
(m) Moody's and Standard & Poor's shall have rated each class of Notes "Aaa" and "AAA", respectively, and there shall not have been any announcement by Moody's or Standard & Poor's that (i) it is downgrading any of its ratings assigned to any class of Notes or (ii) it is reviewing its ratings assigned to any class of Notes with a view to possible downgrading, or with negative implications, or direction not determined.
(n) The Surety Provider shall have provided (i) a Note Surety Bond relating to the Notes, (ii) a certificate dated the Closing Date and signed by an executive officer of the Surety Provider with respect to the accuracy of the information relating to the Surety Provider contained in the Prospectus and (iii) a letter addressed to the Underwriter and dated the date hereof from KPMG Peat Marwick LLP, independent certified public accountants, consenting to the inclusion of its report on the financial statements of the Surety Provider in the Prospectus.
(p) Deposits required by the Sale and Servicing Agreement into the Pre-Funding Account, Capitalized Pre-Funding Account and Capitalized Interest Account shall have been made.
(q) The Companies shall have furnished or caused to be furnished to the Underwriter an executed copy of each of the Basic Documents and such further certificates and documents as the Underwriter shall have requested.
(r) Simultaneously with or prior to the Closing Date, the Representative shall $115,000,000 aggregate initial principal amount of Class A-4 Notes have received from Underwriters' Counsel, such opinion or opinions with respect been sold to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus Soloman Brothers Inc. and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CFirst Union Capital Mar▇▇▇▇ ▇▇▇▇▇y. All such opinions, dated certificates, letters and other documents will be in compliance with the Closing Date, addressed to the Underwriters and provisions hereof only if they are reasonably satisfactory in form and substance satisfactory to Underwriters' Counselthe Underwriter and counsel for the Underwriter. Any certificate or document signed by any officer of the Companies or The Money Store and delivered to the Underwriter, or to counsel for the Underwriter, shall be deemed a representation and warranty by the Companies or The Money Store, respectively, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject Underwriter as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for statements made therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & VeithCamhy, counsel to the C▇▇▇▇▇y▇▇▇▇ & ▇▇▇▇▇, LLP ("CKS"), counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all the requisite corporate power and authority, authority and has obtained any and all the necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar mattersmatters (the absence of which would have a material adverse effect on the Company), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Securities," and to the best knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Warrant Agreement, the Representative's Warrant Agreement, and as described in the Prospectus. The Securities, Registered Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and to the holders thereof have no rights best of rescission with respect theretosuch counsel's knowledge, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Registered Securities to be sold by the Company hereunder and under the Warrant Agreement and Representative's Warrant Agreement are not and will not not, to the best of such counsel's knowledge, be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the The Representative's Warrant of the Securities to be sold by the Company, the Underwriters Warrants constitute valid and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its binding obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal rightissue and sell, power upon exercise thereof and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrantpayment therefor, the receipt number and type of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement securities of the Company enforceable against the Company in accordance with its terms called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement of the Registered Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the Representative, respectively, good and marketable title to the Registered Securities free and clear of all liens and other encumbrances;
(iv) the Registration Statement is effective under the Act, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and neither no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the best of such counsel's knowledge, threatened or contemplated under the Act;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein as to which no opinion need be ren- dered) comply as to form in all material respects with the requirements of the Act and the Regulations. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and the Representative and representatives of the independent public accountants for the Company's execution or delivery of this Agreement and , at which conferences the contents of the Representative's WarrantPreliminary Prospectus, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any on the basis of the terms foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or provisions ofany amendment thereto, at the time such Registration State- ment or constitutes amendment became effective or will constitute the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a default under, material fact or result omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the creation Preliminary Prospectus, the Registration Statement or imposition of Prospectus, and any lien, charge, claim, encumbrance, pledge, security interest, defect amendments or other restriction or equity of any kind whatsoever upon, any property or assets supplements thereto); (tangible or intangiblevi) of the Company pursuant to the terms ofbest of such counsel's knowledge after reasonable investigation, (A) there are no agreements, contracts or other documents required by the certificate of incorporation or by-laws of Act to be described in the Company, Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto; (B) the descriptions in the Registration Statement and the Prospectus and any license, contract, indenture, mortgage, deed supplement or amendment thereto of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any contracts and other agreement or instrument documents to which the Company is a party or by which it is or may bound are accurate in all material respects and fairly represent the information required to be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or shown by Form SB-2; (C) any statute, judgment, decree, order, rule there is not pending or regulation applicable to threatened against the Company of any arbitratoraction, courtarbitration, regulatory body or administrative agency suit, proceeding, litigation, governmental or other governmental agency or body proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over pending or threatened against the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be renderedx) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Prospectus;
Registration Statement are accurately summarized in all material respects), (xy) to such counsel's knowledgequestions the validity of the capital stock of the Company or this Agreement, the Company is not in breach ofWarrant Agreement or the Representative's Warrant Agreement, or in default under, any term or provision of any licenseaction taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) there is no action, contractsuit or proceeding pending or threatened against the Company before any court or arbitrator or governmental body, indentureagency or official in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, mortgagebusiness, installment sale agreement, deed of trust, lease, voting trust agreementaffairs, stockholders' agreementequity, partnership agreementoperations, noteproperties, loan business or credit agreement results of operations of the Company, which could adversely affect the present or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any prospective ability of the Company may be bound to perform its obligations under this Agree- ment, the Warrant Agreement or to the Representative's Warrant Agreement or which in any manner draws into question the property validity or assets (tangible enforceability of this Agree- ment, the Warrant Agreement or intangible) of any of the Company iRepresentative's Warrant Agreement;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares to be delivered at each Time of Delivery shall be subject subject, in their discretion, to the continuing accuracy of the representations and warranties of each of the Company and Parent contained herein as of the date hereof and as of the Closing Date and each Option Closing Datesuch Time of Delivery, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company officers of the Company made pursuant to the provisions hereof; and , to the performance by each of the Company on and as of the Closing Date and each Option Closing Date, if any, Parent of its covenants and obligations hereunder agreements hereunder, and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement which shall be in form and substance satisfactory If the registration statement as amended to date has not become effective prior to the Representative and Underwriter's Counselexecution of this Agreement, such registration statement shall have become been declared effective not later than 12:00 p.m.11:00 a.m., New York Hartford, Connecticut time, on the date of this Agreement or such later date and and/or time as shall be have been consented to by you in writing by writing. The Prospectus and any amendment or supplement thereto shall have been filed with the Representative, and, at Closing Date Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing and each Option Closing Date, if any, in accordance with Section 5(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted instituted, threatened or, to the knowledge of the Company, Parent or shall be pending or the Representatives, contemplated by the Commission Commission; and any request all requests for additional information on the part of the Commission for additional information shall have been complied with to the your reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationssatisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be satisfactory in all material respects to counsel to the Underwriters.
(c) The Representative Representatives shall not have advised received copies of executed lock-up agreements from each of Parent, the Company and the Company's officers and directors who own shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or who may be issued shares of Common Stock under an option plan or other arrangement to the effect that such individuals and entities will not offer, sell, contract to sell, or otherwise dispose of, any such shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock for a period of 180 days after the date of the Prospectus without the written consent of Advest, Inc.
(d) The Representatives shall have received at or prior to the First Time of Delivery from the Underwriters' counsel the Preliminary Blue Sky Memorandum, such memorandum to be in form and substance satisfactory to the Representatives.
(e) LeBoeuf, Lamb, Greene & MacRae, L.L.P., coun▇▇▇ ▇or th▇ ▇▇▇▇rwriters, shall have furnished to you such opinion or opinions, dated such Time of Delivery, with respect to the incorporation of the Company, the validity of the Shares being delivered at such Time of Delivery, the Registration Statement, the Prospectus, and other related matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(g) You shall have received an opinion, dated such Time of Delivery, of Barnes & Thornburg, counsel for ▇▇▇ ▇▇mpa▇▇, ▇▇ ▇▇rm and substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation under the laws of the State of Indiana and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder.
(ii) Each of the subsidiaries listed on Exhibit 21 to the Registration Statement (the "Subsidiaries") of the Company is validly existing as a corporation in good standing (where applicable) under the laws of its jurisdiction of incorporation and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Company's authorized, issued and outstanding capital stock is as disclosed in the Prospectus. All of the issued shares of Common Stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description of the Common Stock contained in the Prospectus. None of the outstanding shares of Common Stock have been issued in violation of the preemptive or other similar rights of any shareholder or warrantholder of the Company arising by operation of law, under the Articles of Incorporation or Bylaws of the Company or, to our knowledge, under any agreement to which the Company or any of its Subsidiaries is a party. The issuance of the shares of Common Stock is not subject to preemptive or other similar rights under the Articles of Incorporation or Bylaws of the Company or, to our knowledge, under any agreement to which the Company or any of its Subsidiaries is a party.
(iv) All of the issued shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, to such counsel's knowledge, are owned beneficially by the Company or its subsidiaries, free and clear of all liens, security interests, pledges, charges, encumbrances, shareholders' agreements, voting agreements, proxies, voting trusts, defects, equities or claims of any nature whatsoever (collectively, "Encumbrances"), including, without limitation, Encumbrances arising or resulting from any indenture, mortgage, deed of trust, loan agreement, lease or other agreement of or entered into by Parent, except for the Pledges and the Stockholder Agreement (as such term is defined in the Prospectus).
(v) When the Shares have been duly delivered against payment therefor as contemplated by this Agreement, the Shares will be duly authorized, validly issued and fully paid and nonassessable, the holders thereof will not be subject to personal liability solely by reason of being such holders and the Shares will conform to the description of the Common Stock contained in the Prospectus; the certificates evidencing the Shares will comply with all applicable requirements of Indiana law; and the Shares will have been listed on the Nasdaq National Market.
(vi) To such counsel's knowledge, neither the Company nor any of its subsidiaries is, or with the giving of notice or passage of time or both, would be, in violation of its Articles of Incorporation or Bylaws, in each case as amended to date.
(vii) The sale of the Shares being sold at such Time of Delivery and the performance of this Agreement and the consummation of the transactions herein contemplated will not violate any provision of the Articles of Incorporation or Bylaws of the Company or any of its Subsidiaries, in each case as amended to date, or to such counsel's knowledge, any existing law, statute, rule or regulation, or conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument known to such counsel to which the Company or any such Subsidiary
is a party or to which any of their respective properties or assets is subject (except for any conflicts with, breaches of or violations of any such indentures, mortgages, deeds of trust, loan agreements, leases or other agreements or instruments which would not, individually or in the aggregate, have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole), or, conflict with or violate any order, judgment or decree known to such counsel, of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their respective properties or assets, except with respect to any statute, rule or regulation of any regulatory authority imposing any obligation on the part of the Underwriters by way of their purchase of the Shares, as to which no opinion need be rendered.
(viii) To such counsel's knowledge, no consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares or the consummation of the transactions contemplated by this Agreement, except such as have been or will have been obtained and are or will be in effect, and except the registration of the Shares under the Act, the Exchange Act and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of the Shares by the Underwriters, as to which such counsel expresses no opinion.
(ix) To such counsel's knowledge and other than as disclosed in or contemplated by the Prospectus, there is no litigation, arbitration, claim, proceeding (formal or informal) or investigation pending or threatened, in which the Company or any of its Subsidiaries is a party or of which any of their respective properties or assets is the subject which, if determined adversely to the Company or any such Subsidiary, would individually or in the aggregate have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole.
(x) The statements in the Prospectus under "Business -- Regulation," "Business -- Legal Proceedings," "Description of Capital Stock" and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations, or legal conclusions, are correct in all material respects.
(xi) This Agreement has been duly authorized, executed and delivered by the Company.
(xii) Neither the Company nor any of its subsidiaries nor Parent is an "investment company" or a company "controlled" by an investment company as such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the Investment Company Act of 1940, as amended.
(xiii) The Registration Statement and the Prospectus and each amendment or supplement thereto (other than the financial statements, the notes and schedules thereto and other financial data included therein, to which such counsel need express no opinion), as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the respective rules and regulations thereunder. The descriptions in the Registration Statement and the Prospectus of contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required.
(xiv) Such counsel has been advised by the Division of Corporation Finance of the Commission that the Registration Statement has become effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to such counsel's knowledge, (A) no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and (B) no proceedings for that purpose have been instituted or threatened or are contemplated by the Commission. Such counsel shall also state that they have participated in the preparation of the Registration Statement and the Prospectus and in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of and counsel to the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although such counsel has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, and although such counsel has not undertaken to verify independently the accuracy or completeness of the statements in the Registration Statement or the Prospectus and, therefore, would not necessarily have become aware of any material misstatement of fact or omission to state a material fact, on the basis of and subject to the foregoing, nothing has come to such counsel's attention to lead them to believe that the Registration Statement, or any further amendment theretothereto made prior to such Time of Delivery, on its effective date and as of such Time of Delivery, contained or contains an any untrue statement of a material fact which, in the Representative's opinion, is material, or omitted or omits to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On , or that the Prospectus, or any amendment or supplement thereto made prior to such Time of Delivery, as of its issue date and as of such Time of Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the Closing Datestatements therein, in the light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, notes and schedules thereto and other financial and statistical data contained in the Registration Statement, any amendment thereto, or the Prospectus Prospectus, or any amendment or supplement thereto). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deem proper, on certificates of officers of the Company and public officials and letters from officials of the NASD and on the opinions of other counsel reasonably satisfactory to you and your counsel as to matters which are governed by laws other than the laws of the State of Indiana and the Federal laws of the United States; provided that such counsel shall state in their opinion that they are so relying, and they are justified in relying on such other opinions. Copies of such certificates of officers of the Company and other related matters as opinions shall be addressed and furnished to the Representatives may request Underwriters and furnished to counsel for the Underwriters' Counsel .
(h) You shall have received an opinion, dated such papers and information as they request to enable them to pass upon such matters.
(d) At Closing DateTime of Delivery, the Underwriters shall have received the favorable opinion of Stursberg & VeithDavid L. Bates, counsel to the CEsquire, General ▇▇▇▇▇y▇▇ ▇▇ ▇▇▇ Company and Parent, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselyou and your counsel, to the effect that:
(i) the The Company (A) has been duly organized incorporated, is validly existing as a corporation under the laws of the State of Indiana and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder. The Company is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business, so as to require such qualification, except where the failure to so qualify would not have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole. Parent has been duly incorporated, is validly existing as a federally chartered corporation in good standing under the laws of Canada and has the corporate power and authority to enter into this Agreement and perform its obligations hereunder.
(ii) Each of the subsidiaries of the Company is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, jurisdiction of incorporation and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iown or
Appears in 1 contract
Sources: Underwriting Agreement (Symons International Group Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:the
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:00 P.M., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriter and Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, material or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date and each Option Closing Date, as the Representative case may be, the Underwriters shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, Company the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Underwriters reasonably may request and Underwriters' Counsel such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, Date and the Option Closing Date the Underwriters shall have received the favorable an opinion of Stursberg Looper, Reed, Mark & Veith▇cGr▇▇, counsel ▇▇unsel to the C▇▇▇▇▇yCompany, dated the Closing Date, or Option Closing Date, as the case may be, addressed to the Underwriters Representative and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company The Company: (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite the State of Nevada with full corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease and operate its properties and conduct to carry on its business as described set forth
(ii) The Registration Statement, each Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form SB-2 have been satisfied by the Company. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus; , on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective or the Prospectus as of the date thereof contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or to make the statements therein in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Registration Statement or Prospectus or with respect to statements or omissions made therein in reliance upon information furnished in writing to the Company is not qualified as a foreign corporation on behalf of any Underwriter expressly for use in any jurisdiction the Registration Statement or the Prospectus).
(to iii) To the best of such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under "Capitalization"." The Shares, and, to such counsel's knowledge, after due inquiryRedeemable Warrants, the Company is not a party to or bound by any instrumentPurchase Option, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The SecuritiesUnderwriters' Warrants, and all other securities issued or issuable by the Company, Warrant Shares conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect theretothereof, and to counsel's best knowledge, are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; , and none of such securities were issued in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation Company.
(iv) The issuance of the Company orShares, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by Redeemable Warrants and the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, Warrant Shares have been duly authorized and, and when issued, issued and paid for and delivered in accordance with this Agreement and the terms hereof or the Representative's WarrantWarrant Agreement, respectively, will be validly issued, fully paid and non-assessable securities of the Company. The holders of the Securities when issued and conform to the description thereof contained in the Prospectus; the holders thereof paid for, will not be subject to any personal liability under by reason of being such holders. To the laws best of such
(v) Based solely on telephonic, verbal confirmation provided to such counsel by the staff of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationCommission, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is and all post-effective amendments, if any, have become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each Act; and any required filing of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as pursuant to which no opinion need be renderedRule 424(b) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulationshas been made.
(vi) to To the best of such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against SB-2 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;Regulations.
(vii) This Agreement, the Company has full legal rightUnderwriters Warrant, power and authority to enter into this Agreement the Warrant Agreement, and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Financial Consulting Agreement and the Representative's Warrant have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and assuming that it is a valid and binding agreement of the Representative WarrantUnderwriters, assuming due authorization, execution and delivery by each other party hereto and, with respect to so as the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actcase may be, constitutes a legal, valid and binding agreement of the Company enforceable as against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), and neither .
(viii) Neither the Company's execution or delivery by the Company of this Agreement and of Agreement, the RepresentativeUnderwriter's Warrant, and the Warrant Agreement, nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, nor the issuance of the securities conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, upon any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate Articles of incorporation or by-laws Incorporation of the Company, or (B) any licenseto the best knowledge of such counsel, contractand except to the extent it would not have a Material Adverse Effect on the Company, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.,
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body body, (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement, the Underwriters' Warrant, the Financial Consulting Agreement and the transactions Warrant Agreement by the Company, and the taking of any action by the Company contemplated hereby;hereby or thereby, which has not been obtained.
(ixx) to To the best of such counsel's knowledge, except as described in the properties and business Prospectus, no person, corporation, trust, partnership, association or other entity holding securities of the Company conform has the contractual right to include and/or register any securities of the Company in the Registration Statement, require the Company to file any registration statement or, if filed, to include any security in such registration statement for twelve months from the date hereof.
(xi) After the public offering, the Securities will be eligible for listing on the Nasdaq SmallCap Market. In rendering such opinion such counsel may rely, (A) as to matters involving the application of laws other than the laws of the United States, the corporate laws of Nevada and jurisdictions in which they are admitted, to the description thereof contained extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and in substance reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the applicable laws, and (B) as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company; provided, that copies of any such statements or certificates shall be delivered to Underwriters' Counsel if requested. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and, in their opinion, the Underwriters and they are justified in relying thereon.
(e) At each Option Closing Date, if any, the Underwriters shall have received the an opinion of counsel to the Company, each dated the Option Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel confirming as of Option Closing Date the statements made by such firm, in their opinion, delivered on the Closing Date.
(f) On or prior to each of the Closing Date and the Option Closing Date, Underwriters' Counsel shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters
(g) Prior to the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse change nor development involving a prospective change in the condition, financial or otherwise, prospects or the business activities of the Company, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company, from the latest date as of which the financial condition of the Company is set forth in the Registration Statement and Prospectus which is materially adverse to the Company; (iii) the Company shall not be in material default under any provision of any instrument relating to any outstanding indebtedness; (iv) no material amount of the assets of the Company shall have been pledged or mortgaged, except as set forth in the Registration Statement and Prospectus; (v) no action, suit or proceeding, at law or in equity, shall have been pending or to its knowledge threatened against the Company, or affecting any of its properties or businesses before or by any court or federal, state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement and Prospectus; and (vi) no stop order shall have been issued under the Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission.
(h) At the Closing Date and each Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the Company, dated the Closing Date or Option Closing Date, as the case may be, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all agreements and covenants and satisfied all conditions contained in this Agreement on its part to be performed or satisfied at or prior to such Closing Date or Option Closing Date, as the case may be;
(xii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such counselperson's knowledge, are contemplated or threatened under the Company is not in breach ofAct;
(iii) The Registration Statement and the Prospectus and, or in default underif any, any term or provision of any licenseeach amendment and each supplement thereto, contractcontain all statements and information required to be included therein, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any and none of the Company may Registration Statement, the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be bound stated therein or necessary to which make the property or assets (tangible or intangible) of any statements therein, in light of the Company icircumstances under which they were made, not misleading and neither the Preliminary Prospectus nor any su
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject Underwriter to purchase and pay for the Firm Preferred Securities and, following exercise of the Option granted by the Offerors in Section 1 of this Agreement, the Option Preferred Securities, are subject, in the Underwriter's reasonable discretion, to the continuing accuracy of and compliance with the representations and warranties and agreements of the Company Offerors herein as of the date hereof and as of the Closing Date and each (or in the case of the Option Closing DatePreferred Securities, if any, as if they had been made on and as of the Closing Date or each Option Closing Date), as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the written statements of the officers of the Company Offerors made pursuant to the provisions hereof; and , to the performance by the Company on and as Offerors of the Closing Date and each Option Closing Date, if any, of its their covenants and obligations hereunder and to the following further additional conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective prior to the time of execution hereof, the Registration Statement shall have become effective not later than 12:00 p.m.10:00 a.m., New York St. Louis time, on the date first business day following the time of execution of this Agreement Agreement, or at such later time and date and time as shall be consented the Underwriter may agree to in writing by writing. If required, the Representative, Prospectus and any amendment or supplement thereto shall have been timely filed in accordance with Rule 424(b) and Rule 430A under the 1933 Act and, at Closing Date and each Option Closing Date, if any, no
Section 4(a) hereof. No stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto shall have been issued under the 1933 Act or any applicable state securities laws and no proceedings for that purpose shall have been instituted or shall be pending pending, or, to the knowledge of the Offerors or the Underwriter, shall be contemplated by the Commission and or any state authority. Any request on the part of the Commission or any state authority for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules Underwriter and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission satisfaction of counsel for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsUnderwriter.
(b) The Representative Underwriter shall not have advised the Company in writing at or before the Closing Date (and, if applicable, the Option Closing Date) that the Registration StatementStatement or any post-effective amendment thereto, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact which, in the RepresentativeUnderwriter's opinion, is material, material or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that (in the Prospectus, case of the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, ) not misleading.
(c) On or prior All corporate proceedings and other legal matters incident to the Closing Dateauthorization, form and validity of this Agreement, the Representative Trust Agreement, and the Designated Preferred Securities, and the authorization and form of the Registration Statement and Prospectus, other than financial statements and other financial data, and all other legal matters relating to this Agreement and the transactions contemplated hereby or by the Trust Agreement shall be satisfactory in all material respects to counsel to the Underwriter, and the Offerors and the Subsidiaries shall have received from Underwriters' Counsel, furnished to such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers counsel all documents and information as relating thereto that they may reasonably request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg ▇▇▇▇▇ & Veith, counsel to the C▇▇▇▇▇y▇, LLP, counsel to the Offerors, shall have furnished to the Underwriter its signed opinion, dated the Closing Date or the Option Closing Date, addressed to as the Underwriters and case may be, in form and substance satisfactory to Underwriters' Counselcounsel to the Underwriter as to the matters set forth in as Exhibit B hereto.
(e) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, special Delaware counsel to the Offerors, shall have furnished to the Underwriter its signed opinion, dated as of Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to such counsel, to the effect that:
(i) the Company (A) The Trust has been duly organized created and is validly existing as a corporation in good standing as a business trust under the laws of its jurisdictionDelaware Business Trust Act and, under the Trust Agreement and (B) the Delaware Business Trust Act, has all requisite corporate the trust power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledgeThe Trust Agreement is a legal, valid and binding agreement of the Company does not own an equity interest Trust and the Trustees, and is enforceable against the Company, as depositor, and the Trustees, in any other corporation, partnership, joint venture, trust or other business entity;accordance with its terms.
(iii) Under the Company has a Trust Agreement and the Delaware Business Trust Act, the execution and delivery of this Agreement by the Trust, and the performance by the Trust of its obligations thereunder, have been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly authorizedauthorized by the Trust Agreement, and when issued and outstanding capitalization sold in accordance with the Trust Agreement, the Designated Preferred Securities will be, subject to the qualifications set forth in paragraph (v) below, fully paid and nonassessable beneficial interests in the assets of the Trust and entitled to the benefits of the Trust Agreement. The form of certificates to evidence the Designated Preferred Securities has been approved by the Trust and is in due and proper form and complies with all applicable requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation on personal liability extended to shareholders of private, for-profit corporations organized under the General Corporation Law of the State of Delaware. Such opinion may note that the holders of Designated Preferred Securities may be obligated to make payments as set forth in the Prospectus, Trust Agreement.
(vi) Under the Delaware Business Trust Act and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquirythe Trust Agreement, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities issuance of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are Designated Preferred Securities is not subject to personal liability under preemptive rights.
(vii) The issuance and sale by the Trust of the Designated Preferred Securities and the Common Securities, the execution, delivery and performance by the Trust of this Agreement, and the consummation of the transactions contemplated by this Agreement, do not violate (a) the Trust Agreement, or (b) any applicable Delaware law, rule or regulation. Such opinion may state that it is limited to the laws of the State of New York as currently Delaware and that the opinion expressed in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be paragraph (ii) above is subject to any preemptive or the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance and other similar laws relating to or affecting the rights and remedies of any stockholder contained creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the certificate effect of incorporation applicable public policy on the enforceability of provisions relating to indemnification or contribution.
(f) ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇., counsel to the Company orUnderwriter, shall have furnished to such counsel's knowledgethe Underwriter its signed opinion, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with dated the terms hereof Closing Date or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantOption Closing Date, as the case may be, will acquire good and marketable title with respect to the Securities free sufficiency of all corporate procedures and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under legal matters relating to this Agreement, or (D) resales the validity of the Securities in connection with Designated Preferred Securities, the distribution contemplated herebyRegistration Statement, the Prospectus and such other related matters as the Underwriter may reasonably request and there shall have been furnished to such counsel such documents and other information as they may request to enable them to pass on such matters. In giving such opinion, ▇▇▇▇▇, Rice & ▇▇▇▇▇▇▇▇, ▇.▇. may rely as to matters of fact upon statements and certifications of officers of the Offerors and of other appropriate persons and may rely as to matters of law, other than law of the United States and the State of Missouri, upon the opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, and Pricket ▇▇▇▇▇ described herein.
(ivg) On the Registration Statement is effective under date of this Agreement and on the Acts, Closing Date (and, if applicable, filing any Option Closing Date), the Underwriter shall have received from PricewaterhouseCoopers LLP, Ernst & Young LLP and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. letters, dated the date of all pricing information has been timely made this Agreement and the Closing Date (and, if applicable, the Option Closing Date), respectively, in form and substance satisfactory to the appropriate form under Rule 430AUnderwriter, confirming that, with respect PricewaterhouseCoopers LLP, they are independent public accountants with respect to the Company and the Company Subsidiaries (for purposes of this Section 6(g) only, the "Company") within the meaning of the 1933 Act and the 1933 Act Regulations, and, with respect to such counsel's knowledgeErnst & Young LLP and ▇▇▇▇▇▇▇, after due inquiry▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, no stop order suspending L.L.P., they are independent public accountants with respect to Bancorp and the use Bancorp Subsidiaries (for purposes of this Section 6(g) only, "Bancorp") within the meaning of the Preliminary Prospectus1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements of the Company or Bancorp, as the case may be, audited by them and included in the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the applicable accounting requirements of the Acts 1933 Act and the Rules and 1933 Act Regulations.
(viii) On the basis of the procedures specified by the American Institute of Certified Public Accountants as described in SAS No. 71, "Interim Financial Information," inquiries of officials of the Company or Bancorp, as the case may be, responsible for financial and accounting matters, and such other inquiries and procedures as may be specified in such letter, which procedures do not constitute an audit in accordance with U.S. generally accepted auditing standards, nothing came to their attention that caused them to believe that, if applicable, the best unaudited interim consolidated financial statements of the Company or Bancorp, as the case may be, included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and 1933 Act Regulations or are not in conformity with U.S. generally accepted accounting principles applied on a basis substantially consistent, except as noted in the Registration Statement, with the basis for the audited consolidated financial statements of the Company or Bancorp, as the case may be included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an audit in accordance with U.S. generally accepted auditing standards, consisting of a reading of the unaudited interim financial statements and other information referred to below, a reading of the latest available unaudited condensed consolidated financial statements of the Company or Bancorp, as the case may be, inspection of the minute books of the Company or Bancorp, as the case may be, since the date of the latest audited financial statements of the Company or Bancorp, as the case may be, included or incorporated by reference in the Registration Statement, inquiries of officials of the Company or Bancorp, as the case may be, responsible for financial and accounting matters and such counsel's knowledgeother inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than five days prior to the date of such letter, there are no agreementshave been any changes in the consolidated capital stock of the Company or Bancorp, contracts as the case may be, any increase in the consolidated debt of the Company or Bancorp, as the case may be, any decreases in consolidated total assets or shareholders equity of the Company or Bancorp, as the case may be, or any changes, decreases or increases in other documents required items specified by the Acts Underwriter, in each case as compared with amounts shown in the latest unaudited interim consolidated statement of financial condition of the Company or Bancorp, as the case may be, included in the Registration Statement except in each case for changes, increases or decreases which the Registration Statement specifically discloses, have occurred or may occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited interim consolidated financial statements of the Company or Bancorp, as the case may be, included in the Registration Statement to be the specified date referred to in Clause (iii)(A), there were any decreases in the consolidated interest income, net interest income, or net income of the Company or Bancorp, as the case may be, or in the per share amount of net income of the Company or Bancorp, as the case may be, or any changes, decreases or increases in any other items specified by the Underwriter, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Underwriter, except in each case for increases or decreases which the Registration Statement discloses have occurred or may occur, or which are described in such letter;
(iv) In addition to the audit referred to in their report included in the Registration Statement and the Prospectus limited procedures, inspection of minute books, inquiries and filed as exhibits other procedures referred to the Registration Statement other than those described in the Registration Statement paragraphs (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference thereinii) and (iii) above, they have carried out certain specified procedures, not constituting an audit in accordance with U.S. generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Prospectus Underwriter which are derived from the general accounting records and filed as exhibits thereto, and the exhibits which have been filed are correct copies consolidated financial statements of the documents of Company or Bancorp, as the case may be, which they purport to be copies; (B) the descriptions appear in the Registration Statement and have compared such amounts, percentages and financial information with the Prospectus accounting records and any supplement or amendment thereto of contracts the material derived from such records and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock consolidated financial statements of the Company or this Agreement or Bancorp, as the Representative's Warrant or of any action taken or case may be, and have found them to be taken by in agreement. In the Company pursuant event that the letters to be delivered referred to above set forth any such changes, decreases or increases as specified in connection with Clauses (iii)(A) or (iii)(B), above, or any exceptions from such agreement specified in Clause (iv) above, it shall be a further condition to the obligations of the foregoing; Underwriter that the Underwriter shall have determined, after discussions with officers of the Company, responsible for financial and accounting matters, that such changes, decreases, increases or exceptions as are set forth in such letters do not (Dx) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in reflect a material adverse change in the conditionitems specified in Clause (iii)(A) above as compared with the amounts shown in the latest unaudited consolidated statement of financial condition of the Company or Bancorp, financial as the case may be, included in the Registration Statement, (y) reflect a material adverse change in the items specified in Clause (iii)(B) above as compared with the corresponding periods of the prior year or otherwiseother period specified by the Underwriter, or (z) reflect a material change in items specified in Clause (iv) above from the earningsamounts shown in the Preliminary Prospectus distributed by the Underwriter in connection with the offering contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, positionif applicable, prospectsthe Option Closing Date, stockholders' equity, value, operation, properties, business or results the Underwriter shall have received certificates of operations the chief executive officer and the chief financial and accounting officer of the Company, which could materially adversely affect the present or prospective ability certificates shall be deemed to be made on behalf of the Company to perform its obligations under this Agreement or which in any manner draws into question dated as of the validity or enforceability Closing Date and, if applicable, the Option Closing Date, evidencing satisfaction of this Agreement;
the conditions of Section 6(a) and stating that (viii) the Company has full legal rightrepresentations and warranties of the Offerors set forth in Section 2(a) hereof are accurate as of the Closing Date and, power and authority to enter into this Agreement and if applicable, the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActOption Closing Date, and that the Offerors have complied with all agreements and satisfied all conditions on their part to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto be performed or satisfied at or prior to such Closing Date and, with respect to the Representative's Warrantif applicable, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms ofOption Closing Date, (Aii) since the certificate respective dates as of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company information is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained given in the Registration Statement and the Prospectus;
, there has not been any material adverse change in the condition (x) to such counsel's knowledgefinancial or otherwise), the Company is not in breach ofearnings, affairs, business, prospects or in default under, any term or provision results of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any operations of the Company may be bound or to which Offerors, Bancorp and the property or assets Subsidiaries on a consolidated basis, (tangible or intangibleiii) of any of the Company isin
Appears in 1 contract
Conditions of the Underwriters’ Obligations. I. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each the Option Closing Date, if any, as if they had been made on and as of the Closing Date or each the Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Incorporated Sutro & Co. Incorporated provisions hereof; and the performance by the Company and the Selling Stockholders on and as of the Closing Date and each the Option Closing Date, if any, of its respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York timeEastern Time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each the Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegulations under the Act, the price of the Shares and any price-related other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations under the Act within the prescribed time period, and and, prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and RegulationsRegulations under the Act.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact whichthat, in the Representative's opinionRepresentatives' opinion or in the opinion of Underwriters' Counsel, is material, or omits to state a fact whichthat, in the Representative's opinionRepresentatives' opinion or in the opinion of Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact whichthat, in the Representative's opinionRepresentatives' opinion or in the opinion of Underwriters' Counsel, is material, or omits to state a fact whichthat, in the Representative's opinionRepresentatives' opinion or in the opinion of Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date and the Option Closing Date, if any, the Representative Representatives shall have received from UnderwritersRepresentatives' CounselCounsel the favorable opinion to the effect that: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Incorporated Sutro & Co. Incorporated
(i) the capital stock of the Company, including, without limitation, the Common Stock, conforms in all material respects to the description thereof contained in the Prospectus;
(ii) the Registration Statement is effective under the Act, and if applicable, the filing of all pricing and other information has been timely made in the appropriate form under Rule 430A of the Rules and Regulations, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or threatened by the Commission. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Representatives, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed, and, although such counsel is not passing upon and does not assume any responsibility for, nor has such counsel independently verified, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to matters referred to in subparagraph (i) above of this Section 6(c)), no facts have come to the attention of such counsel (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company) that lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or any Preliminary Prospectus (other than information omitted pursuant to Rule 430A) or the Prospectus or any amendment or supplement thereto as of the date of such opinion contained or opinions contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no view with respect to the organization of the Company, the validity of the Securitiesfinancial statements and schedules and other financial and statistical data included in any Preliminary Prospectus, the Registration StatementStatement (including any exhibit thereto) or the Prospectus or any amendment or supplement thereto);
(iii) each of the Preliminary Prospectuses, the Registration Statement and the Prospectus and any amendments or supplements thereto (other related matters than the financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Incorporated Sutro & Co. Incorporated comply as to form in all material respects with the Representatives may request requirements of the Act and the Rules and Regulations; and
(iv) this Agreement has been duly authorized, executed and delivered by the Company. The opinion of Underwriters' Counsel shall have received to be dated the Option Closing Date, if any, may confirm as of the Option Closing Date the statements made by such papers and information as they request to enable them to pass upon such matterscounsel in their opinion delivered on the Closing Date.
(d) At On the Closing Date and the Option Closing Date, if any, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇ & Knight, P.C., counsel to the Company, dated the Closing Date and the Option Closing Date, if any, addressed to the Underwriters and in form and substance reasonably satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been the Company and each of the Subsidiaries are duly organized and is validly existing as a corporation corporations in good standing under the laws of its jurisdictionthe jurisdiction of their organization, and (B) has the Company is duly qualified as a foreign corporation and in good standing in New York; all requisite corporate power of the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and authorityvalidly issued and are fully-paid and non-assessable, and has obtained any are owned of record by the Company; the outstanding shares of capital stock of the Subsidiaries are owned by the Company free and clear of all authorizationsliens, approvals, orders, licenses, certificates, franchises encumbrances and permits of and from all governmental or regulatory officials and bodies security interests (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business except as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiryno options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into, or exchange any securities for, any shares of capital stock of or ownership interests in any of the Subsidiaries are outstanding;
(ii) the Company and each of the Subsidiaries have the corporate power to own, lease and operate their respective properties and to conduct their respective businesses as described in the Prospectus;
(iii) the authorized and outstanding capital stock of the Company is as set forth in the Prospectus under the heading "Capitalization," subject to the assumptions set forth therein, and, except as provided for in this Agreement and as described in the Prospectus, to such counsel's knowledge, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and Selling Shareholder herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may beif any; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its the statements of officers of the Company and Selling Shareholder made pursuant to the provisions hereof; and the performance by the Company and by the Selling Shareholder on and as of the Closing Date and each Option Closing Date, if any, of their respective covenants and obligations hereunder and to the following further conditionshereunder:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date [prior to the date] of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Firm Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇'▇▇▇▇▇y▇ & ▇▇▇▇▇▇ ("▇'▇▇▇▇▇▇ & ▇▇▇▇▇▇"), counsel to the Company, dated the Closing Date, Date addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiaries (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge after due inquiry, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters, the absence of which would have a material adverse effect on the Company), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Company owns one hundred percent (100%) of the outstanding capital stock of the Subsidiaries free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever;
(iii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after due inquiry, neither the Company does not own nor any of the Subsidiaries owns an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iiiiv) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Capital Stock," and to the best of such counsel's knowledge, knowledge after due inquiry, neither the Company nor any of the Subsidiaries is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representative's Warrant Agreement, and as described in the Prospectus. The ; the Registered Securities, and all other securities issued or issuable by the Company, Company or any of the Subsidiaries conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All ; all issued and outstanding securities of the Company or any of the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessableand, to the best of such counsel's knowledge after due inquiry, nonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation or any of the Company orSubsidiaries, or to the best of such counsel's knowledgeknowledge after due inquiry, similar contractual rights granted by the Company or any agreement, document of the Subsidiaries or instrument. The applicable securities laws; the Registered Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation securityholder of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with any of the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the ProspectusSubsidiaries; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities and the Representative's Warrants are in due and proper form. Upon ; the Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby (except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law); upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant Agreement of the Registered Securities to be sold by the CompanyCompany hereunder and thereunder, the Company will convey against payment therefore as provided herein, to the Underwriters and the holders of or the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities thereto free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or all liens and other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.encumbrances;
(ivv) the Registration Statement is effective under the Acts, and, Act; if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(vvi) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules Regulations. Such counsel shall state that such counsel has participated in conferences with officers and Regulations.other representatives of the Company and the Representative and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto);
(vivii) to the best of such counsel's knowledgeknowledge after due inquiry, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company or any of the Subsidiaries is a party or by which it any of them is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company or any of the Subsidiaries any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending against the Company or threatened against (or circumstances that may give rise to the same), or involving the properties or business any of the Company Subsidiaries which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or any of the Subsidiaries or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company or any of the Subsidiaries pursuant to or in connection with any of the foregoing; and (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company or any of the Subsidiaries before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, financial or otherwisebusiness, or the earnings, position, prospectsaffairs, stockholders' equity, value, operationoperations, properties, business or results of operations of the CompanyCompany or any of the Subsidiaries, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(viiviii) the Company has full legal right, the corporate power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This ; each of this Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution execution, delivery or delivery performance of this Agreement and of the Representative's Warrant, its performance hereunder and thereunderWarrant Agreement, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or will result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company or any of the Subsidiaries pursuant to the terms of, of (A) the certificate articles of incorporation or by-by laws of the CompanyCompany or any of the Subsidiaries, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) them is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any of the Subsidiaries or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its the Subsidiaries or any of their activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viiiix) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under federal securities or Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Registered Securities pursuant to as contemplated by the Prospectus and the Registration Statement, the performance of this the Agreement and the Representative's Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ixx) to the best of such counsel's knowledgeknowledge after due inquiry, the properties and business businesses of the Company and the Subsidiaries conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(xxi) to the best knowledge of such counsel's knowledge, and except as disclosed in the Registration Statement and the Prospectus, none the Company nor any of the Subsidiaries is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iprovisio
Appears in 1 contract
Sources: Underwriting Agreement (Home Security International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each Option Over-Allotment Closing Date, if any, as if they had been made on and as of the date hereof, the Closing Date or and each Option Over-Allotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Over-Allotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Over-Allotment Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement Statement, which shall be in form and substance satisfactory to the Representative and Underwriter's Underwriters' Counsel, shall have become effective not no later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Over-Allotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings proceeding for that such purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Units and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative prior to the Closing Date, of such timely filing, filing or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, Statement or any amendment thereto, thereto contains an any untrue statement of fact which, in the Representative's opinionopinion of the Representative or Underwriters' Counsel, is material, or omits to state a fact which, in the Representative's opinionopinion of the Representative or Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, Prospectus or any supplement thereto, thereto contains an any untrue statement of fact which, in the Representativeopinion of the Representative or Underwriter's opinion, is material, or omits to state a fact which, in the Representative's Counsel opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, the Company's counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, and the Representative's Warrants and the Representative's Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request request, and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At On the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary relating to own the ownership or lease leasing of its properties and the conduct of its business as described in the Prospectus; the Company is not duly qualified and licensed and in good standing as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no each jurisdiction in which failure to so qualify would have a material adverse effect on its ownership or leasing of any properties or the Company)character of its operations requires such qualification or licensing; to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business business, any intellectual property rights or other assets or results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state state, local and local foreign laws, rules and regulations on the Company's business as currently conducted and as contemplated are true and correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were are made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus and any amendment or supplement theretothere to under the heading, under "Capitalization", and, ," and to such counsel's knowledge, after due inquiry, the Company is not a party to or nor is it bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant, the Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; , and the holders thereof have no rights of rescission with respect thereto, thereto and are not subject to personal liability under the laws of the State of New York Cyprus as currently in effect by reason of being such holders; , and none of such no securities were have been issued by the Company in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representative's Warrant and the Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentshareholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and will conform to the description thereof contained in the Prospectus; , the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; , all corporate action required to be taken for the authorization, issue issuance and sale of the Securities has been duly and validly taken; , and the certificates representing the Securities are in due and proper form. The Warrants and the Representative's Warrants constitute the valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the CompanyCompany pursuant to this Agreement, the Underwriters and the holders of the Representative's Warrant, as the case may be, Representative will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, interest or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters or the Representative in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters and the Representative of the Securities from the Company, (C) the consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, the filing of all pricing information has been timely made in any unfavorable decision, ruling or finding, would materially adversely affect the appropriate form under Rule 430Abusiness, andoperations, to such counsel's knowledgecondition, after due inquiryfinancial or otherwise, no stop order suspending or the use earnings, business affairs or prospects, properties, business, assets (tangible or intangible) or results of operations of the Preliminary Prospectus, Company. The disclosures in the Registration Statement or Prospectus or concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are true and correct in all material respects and do not omit to state any part of any thereof or suspending fact necessary to make the effectiveness statements contained therein not misleading in light of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;circumstances in which they were made.
(v) each of the Preliminary Prospectus, the Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, : (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and or the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and ), or the Prospectus Prospectus, respectively, and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, [including any document to which the Company is a party or by which it is bound, ,] incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5under the Act and the Rules and Regulations thereunder; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental governmental, administrative or other proceeding (including, without limitation, those by any person or body having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock or any other Securities of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal legal, governmental or governmental administrative proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision decision, which may result in a material adverse change in the condition, financial or otherwise, otherwise or the earnings, position, prospects, stockholdersshareholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Representative's Warrant or the Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Representative's Warrant or the Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's WarrantAgreement, subject as to the Representative's Warrant of receipt of an order or exemptive relief under and the 1940 Act, Warrant Agreement and to consummate the transactions provided for herein and therein; and this Agreement and Agreement, the Representative's Warrant each has and the Warrant Agreement have been duly authorized, executed and delivered by the Company. This Agreement Agreement, the Representative's Warrant and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actand thereto, constitutes a the legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of Agreement, the Representative's WarrantWarrant or the Warrant Agreement, the Company's performance of its performance obligations hereunder and or thereunder, its consummation of the transactions contemplated herein, herein or therein or the conduct of its business as described in the Registration Statement, the Prospectus, Prospectus and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or results or will result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate of incorporation Memorandum or by-laws of the CompanyArticles, (B) any license, contract, indenture, mortgage, deed of trust, license, patent, patent application, voting trust agreement, stockholders shareholders' agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those any such agency or body having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations defaults or impositions which do not and would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs, position, shareholders' equity, value, operations, assets (tangible or intangible), properties, business or results of operations of the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, order and no filing with, with any court, regulatory body, government or administrative agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the any Securities pursuant to the Prospectus and the Registration Statement, the performance issuance of this Agreement the Representative's Warrant and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iRepresentati
Appears in 1 contract
Sources: Underwriting Agreement (C W Chemica Waste Technologies)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of each of its or his covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:00 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, material or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, dated LLP, counsel to the Closing DateCompany, addressed to the Underwriters Representative and in form and substance reasonably satisfactory to Underwriters' the Representative's Counsel, to the effect that:
(i) the Company and each of its subsidiaries (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite with full corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease and operate its properties and conduct to carry on its business as described set forth in the Registration Statement and Prospectus; the Company , and (C) is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction each state in which its ownership of property or its conduct of business requires such qualification and where the failure to so qualify would have a material adverse effect on its business;
(ii) to the Company); to best of such counsel's knowledge, the Company has not received any notice of proceedings relating owns, directly or indirectly no subsidiaries except as disclosed in the Prospectus;
(iii) except as described in the Prospectus, to the revocation or modification best knowledge of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the Company has a duly authorized, issued and outstanding capitalization 15,000,000 shares of Common Stock, $.01 par value, of which 2,904,000 shares are issued and outstanding, and 100,000 shares of preferred stock, of which no shares are issued and outstanding, as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessableassessable and contain no pre-emptive rights; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized andand validly authorized, when issued, paid for and delivered upon issuance thereof and payment therefor in accordance with the terms hereof or the Representative's Warrantthis Agreement, will be duly and validly issued, fully paid and non-assessable assessable, and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to pre-emptive rights of any liability under the laws shareholder of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(ivv) to the best of such counsel's knowledge the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, 424(b) and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, Act and the Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and RegulationsRegulations thereunder, and such counsel has no reason to believe and based upon a certificate of the Company's officer's has received no notice to the effect that either the Registration Statement or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made (except that no opinion need be expressed as to financial statements contained in the Registration Statement or Prospectus); and such counsel is familiar with all contracts referred to in the Registration Statement or Prospectus and such contracts are sufficiently summarized or disclosed therein or filed as exhibits thereto as required, and to the best knowledge of counsel, there are no material contracts required to be summarized or disclosed or filed, nor to the best of such counsel's knowledge are there any legal or governmental proceedings pending or threatened to which the Company is the subject which are required to be disclosed in the Registration Statement or the Prospectus which are not disclosed and properly described therein.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) knowledge the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's WarrantAgreement, subject as to the Representative's Warrant of receipt of an order or exemptive relief under Agreement, the 1940 ActWarrant Agreement, and the Consulting Agreement, and to consummate the transactions provided for therein; and each of this Agreement and Agreement, the Representative's Warrant each Agreement, the Warrant Agreement and the Consulting Agreement has been duly authorized, executed and delivered by the Company. This Agreement, the Representative's Warrant Agreement and the Representative WarrantConsulting Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to thereto and further assuming that they are valid and binding agreements of the Underwriters and the Representative's Warrant, so as the receipt of an order or exemptive relief under the 1940 Actcase may be, constitutes a constitute legal, valid and binding agreement agreements of the Company enforceable as against the Company in accordance with its their terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiivii) except as described in to the Prospectus, best of such counsels knowledge no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body body, domestic or foreign, (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this the Agreement, the Representative's Warrants, the Warrant Agreement and the Consulting Agreement, and the transactions contemplated herebythereby;
(viii) the Securities have not been accepted for quotation on the Nasdaq SmallCap Market of the Nasdaq Stock Market;
(ix) to the best of such counsel's knowledge, the properties and business minute books of the Company conform and each of its subsidiaries has been made available to Underwriters' counsel and to the description thereof contained in the Registration Statement and the Prospectus;
(x) to best of such counsel's knowledgeknowledge contain a complete summary of all meetings and actions of their respective directors and stockholders since the time of their respective incorporations and reflect all transactions referred to in such minutes accurately in all respects. In rendering such opinion, such counsel may rely (A) as to matters involving the Company is not application of laws other than the laws of the United States and jurisdictions in breach ofwhich they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in default underform and substance reasonably satisfactory to Representative's counsel) of other counsel reasonably acceptable to Representative's counsel, any term or provision familiar with the applicable laws; and (B) as to matters of any licensefact, contractto the extent they deem proper, indenture, mortgage, installment sale agreement, deed on certificates and written statements of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any responsible officers of the Company may be bound and certificates or to which other written statements of officers of departments of various jurisdictions having custody of documents respecting the property corporate existence or assets (tangible or intangible) of any good standing of the Company iand each of its subsidiaries, provided that copies of any such statements or certificates shall be delivered to Representative's counsel if requested. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and, in their opinion, the Underwriters and they are justified in relying thereon. At each Option Closing Date, if any, the Representative shall have received the favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the Company, dated the Option Closing Date, addressed to the Representative and in form and substance satisfactory to Underwriter's counsel confirming as of Option Closing Date the statements made by ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ in their opinion delivered on the Closing Date.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters to purchase and pay for the Stock hereunder shall be is subject to the continuing continued accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each (and, if applicable, as of the Option Closing Date), if any, to the accuracy of the statements of the Company made in any certificate or certificates pursuant to the provisions hereof as if they had been made on of the date hereof and as of the Closing Date or each (and, if applicable, as of the Option Closing Date), as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 1:30 P.M. New York time, City time on the date of this Agreement hereof, or at such later date and time as shall may be consented to in writing approved by the Representative, and, Representative and the Company and shall remain effective at the Closing Date and each at the Option Closing Date, if any, no . No stop order suspending the effectiveness of the Registration Statement shall have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or, to the knowledge of the Company or shall be pending or contemplated the Representative, threatened by the Commission Commission, and any request on the part of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with satisfied to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative shall not have advised All corporate proceedings and other legal matters in connection with this Agreement, the Company that the form of Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material Statement and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretoand the registration, contains an untrue statement of fact whichauthorization, in the Representative's opinionissue, is material, or omits to state a fact which, in the Representative's opinion, is material sale and is required to be stated therein or is necessary to make the statements therein, in light delivery of the circumstances under which Stock, shall have been reasonably satisfactory to Underwriters' counsel, and such counsel shall have been furnished with such papers and information as they were made, not misleadingmay reasonably have requested to enable them to pass upon the matters referred to in this Section.
(c) On or Subsequent to the execution and delivery of this Agreement, and prior to the Closing Date, there shall not have been a Material Adverse Event, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization public offering of the Company, Stock as contemplated by the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such mattersProspectus.
(d) At Closing Date, the Underwriters The Company shall have received furnished to the favorable Representative the opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP, dated counsel to the Closing DateCompany, addressed to the Underwriters and dated as of the Closing Date, substantially in the form attached hereto as SCHEDULE IV, with such changes as may be reasonably requested by the Representative, and substance satisfactory if Option Stock is purchased at any date after the Closing Date, an additional opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP, addressed to the Underwriters and dated the Option Closing Date, confirming that the statements expressed as of the Closing Date in such opinion remain valid as of the Option Closing Date.
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters' Counsel, shall have furnished to the Underwriters an opinion with respect to such matters as maybe reasonably requested by the Representative, dated as of the Closing Date, and if Option Stock is purchased at any date after the Closing Date, an additional opinion addressed to the Underwriters and dated the Option Closing Date confirming that the statements expressed as of the Closing Date in such opinion remain valid as of the Option Closing Date.
(f) The Company shall furnish the Representative a certificate, signed by the President and the Chief Financial Officer of the Company, dated the Closing Date (and, if applicable, the Option Closing Date), to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement or amendment to the Prospectus and this Agreement and that, to their knowledge:
(i) the Company (A) has been duly organized representations and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security warranties of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant Agreement are true and correct on and as of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsClosing Date, and, if applicable, filing on and as of the Option Closing Date and the Company has complied with all pricing information has been timely made in the appropriate form agreements and satisfied all the conditions under Rule 430A, this Agreement and the Warrant Agreement on its part to be performed or satisfied at or prior to the Closing Date (and, if applicable, at or prior to such counsel's knowledge, after due inquiry, the Option Closing Date);
(ii) no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under or, to the Acts;knowledge of the Company, threatened; and
(viii) each since the date of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the most recent financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is has been no actionMaterial Adverse Event.
(g) At the Effective Date, suit the Representation Date and at the Closing Date (and, if applicable, at the Option Closing Date), BDO ▇▇▇▇▇▇▇, LLP shall have furnished to the Underwriters a letter or proceeding pendingletters, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations dated respectively as of the CompanyEffective Date, which could materially adversely affect the present or prospective ability Representation Date and the Closing Date (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to the Underwriters, covering the time periods and relating to the procedures referred to in Section 2(m) hereof and containing statements and information of the Company type customarily included in accountants' "comfort letters" to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, underwriters with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid financial statements and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or certain other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof information contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i.
Appears in 1 contract
Sources: Underwriting Agreement (Hospitality Worldwide Services Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or and each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or and each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder; and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances in which they were made not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under in which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and such other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they may request in order to enable them to pass upon such matters.
(d) At On the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CTroop ▇▇▇▇▇y▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Company dated the Closing Date, addressed to the Underwriters Underwriters, in form and substance substantially as set forth in Exhibit A hereto and in form and substance satisfactory to Underwriters' Counsel.
(e) At each Option Closing Date, if any, the Underwriters shall have received the favorable opinion of Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the effect that:Company dated the relevant Option Closing Date, addressed to the Underwriters, and in form and substance satisfactory to Underwriters' Counsel confirming as of the Option Closing Date, the statements made by Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, in its opinion delivered on the Closing Date.
(f) On or prior to each of the Closing Date and each Option Closing Date, if any, Underwriters' Counsel shall have been furnished with such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in SECTION 6(c) hereof, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(g) Prior to the Closing Date and each Option Closing Date, if any, (i) the Company (A) has there shall have been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation change or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state development involving a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material prospective adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operationoperations, properties, business or results of operations of the Company, whether or not in the ordinary course of business, from the latest dates as of which could such matters are set forth in the Registration Statement and the Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Registration Statement and the Prospectus; (iii) the Company shall not be in default under any provision of any instrument relating to any outstanding indebtedness; (iv) the Company shall not have issued any securities (other than the Securities) or declared or paid any dividend or made any distribution in respect of its capital stock of any class and there shall not have been any change in the capital stock, debt (long or short term) or liabilities or obligations of the Company (contingent or otherwise) from the latest dates as of which such matters are set forth in the Registration Statement and the Prospectus; (v) no material amount of the assets of the Company shall have been pledged or mortgaged, except as set forth in the Registration Statement and the Prospectus; (vi) no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental or other proceeding, domestic or foreign, shall be pending or threatened (or circumstances giving rise to same) against the Company or affecting any of its properties or business before or by any court or federal, state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially and adversely affect the present condition, financial or prospective ability otherwise, or the earnings, stockholders' equity, value, operations, properties, business or results of operations of the Company taken as a whole, except as set forth in the Registration Statement and Prospectus; and (vii) no stop order shall have been issued under the Act with respect to perform its obligations under the Registration Statement and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission.
(h) At the Closing Date and each Option Closing Date, if any, the Underwriters shall have received a certificate of the Company signed by the principal executive officer and by the chief financial officer of the Company, dated the Closing Date or the relevant Option Closing Date, as the case may be, to the effect that each of such persons has carefully examined the Registration Statement, the Prospectus and this Agreement, and that:
i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date or which the Option Closing Date, as the case may be, and the Company has complied with all agreements and covenants and satisfied all conditions contained in any manner draws into question this Agreement on its part to be performed or satisfied at or prior to such Closing Date or Option Closing Date, as the validity or enforceability of this Agreementcase may be;
ii) No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such person's knowledge, are contemplated or threatened under the Act;
iii) The Registration Statement and the Prospectus and, if any, each amendment and each supplement thereto contain all statements and information required to be included therein, and none of the Registration Statement, the Prospectus or any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading and neither the Preliminary Prospectus nor any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and
iv) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (viiA) the Company has full legal rightnot incurred any material liabilities or obligations, power direct or contingent; (B) the Company has not paid or declared any dividends or other distributions on its capital stock; (C) the Company has not entered into any transactions not in the ordinary course of business; (D) there has not been any change in the capital stock or long-term debt or any increase in the short-term borrowings (other than any increase in short-term borrowings in the ordinary course of business) of the Company (E) the Company has not sustained any material loss or damage to its property or assets, whether or not insured; (F) there is no litigation which is pending or threatened (or circumstances giving rise to same) against the Company or any affiliate (within the meaning of the Rules and authority Regulations) of the foregoing which is required to enter into this Agreement be set forth in an amended or supplemented Prospectus which has not been set forth; and (G) there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been set forth. References to the Registration Statement and the Representative's WarrantProspectus in this SECTION 6(g) are to such documents as amended and supplemented at the date of such certificate.
(i) By the Closing Date, subject the Underwriters will have received clearance from the NASD as to the Representative's Warrant amount of receipt of an order compensation allowable or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect payable to the Representative's WarrantUnderwriters, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement.
(j) At the time this Agreement is executed, the ProspectusUnderwriters shall have received a letter, dated such date, addressed to the Underwriters and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation the Board of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) Directors of the Company pursuant and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to the terms ofUnderwriters and Underwriters' Counsel, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations;
ii) stating that it is their opinion that the financial statements of the Company included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations and that the Underwriters may rely upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP with respect to such financial statements and supporting schedules included in the Registration Statement;
iii) stating that, on the basis of a limited review which included a reading of the latest unaudited interim financial statements of the Company, a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors of the Company, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that (A) the certificate of incorporation or by-laws unaudited financial statements and supporting schedules of the CompanyCompany included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof pro forma financial information contained in the Registration Statement and the Prospectus;
(x) Prospectus does not comply as to such counsel's knowledge, form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations or is not fairly presented in conformity with generally accepted accounting principles applied on a basis consistent with that of the audited financial statements of the Company is not or the unaudited financial information included in breach ofthe Registration Statement and Prospectus or (C) at a specified date no more than five (5) days prior to the effective date of the Registration Statement, there has been any change in the capital stock or in default under, any long-term or provision debt of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed moneythe Company, or any other agreement decrease in the stockholders' equity or instrument to which the Company is a party net current assets or by which any net assets of the Company may be bound as compared with amounts shown in the December 31, 1997 balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any change or decrease, setting forth the amount of such change or decrease, and (D) during the period from December 31, 1997 to which a specified date not more than five (5) days prior to the property effective date of the Registration Statement, there was any decrease in net revenues, net earnings or assets net earnings per share of Common Stock, in each case as compared with the corresponding period beginning December 31, 1996, other than as set forth in or contemplated by the Registration Statement, or, if there was any such decrease, setting forth the amount of such decrease;
iv) setting forth, at a date not later than five (tangible or intangible5) days prior to the effective date of any the Registration Statement, the amount of liabilities of the Company (including a break down of commercial paper and notes payable to banks);
v) stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Prospectus, in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an audit in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement; and
vi) statements as to such other matters incident to the transaction contemplated hereby as the Representative may request.
(k) At the Closing Date and each Option Closing Date, if any, the Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of the Closing Date or the relevant Option Closing Date, as the case may be, to the effect that (i) it reaffirms the statements made in the letter furnished pursuant to SECTION 6(i), (ii) if the Company has elected to rely on Rule 430A of the Rules and Regulations, to the further effect that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has carried out procedures as specified in clause (v) of SECTION 6(j) hereof with respect to certain amounts, percentages and financial information as specified by the Representative and deemed to be a part of the Registration Statement pursuant to Rule 430A(b) and have found such amounts, percentages and financial information to be in agreement with the records specified in such clause (v).
(l) On each of Closing Date and Option Closing Date, if any, there shall have been duly tendered to the Representative for the several Underwriters the appropriate number of Securities.
(m) No order suspending the sale of the Securities in any jurisdiction designated by the Representative pursuant to SECTION 4(e) hereof shall have been issued on either the Closing Date or the Opt
Appears in 1 contract
Sources: Underwriting Agreement (Cumetrix Data Systems Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or and each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or and each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder; and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Units and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under in which they were made not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representatives' opinion, is material, or omits to state a fact which, in the Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Representatives shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and such other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they may request in order to enable them to pass upon such matters.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CStairs ▇▇▇▇▇y▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, dated the Closing Date, addressed to the Underwriters and Underwriters, in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is a validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, authority (corporate and other) and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a and has been doing business in compliance in with all such authorizations, approvals, orders, licenses, certificates and permits obtained by it from governmental or regulatory officials and agencies and all federal, state, local and foreign corporation in any jurisdiction (laws, rules and regulations to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)it is subject; to such counsel's knowledge, and the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, franchise or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, stockholders' equity, value, operations, properties, business or assets results of operations of the Company. The disclosures disclosure in the Registration Statement concerning the effects of federal, state state, local and local foreign laws, rules and regulations on the Company's business as currently conducted and as contemplated are is correct in all material respects and do does not omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading therein, in light of the circumstances in which they were made., not misleading;
(ii) to such counsel's knowledge, the Company does not own own, directly or indirectly, an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiryDescription of Securities" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representatives' Warrant Agreement and the Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the CompanyCompany conform, conform or when issued and paid for, will conform, in all material respects to all statements with respect thereto the descriptions thereof contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, thereto and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar contractual right granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representatives' Warrant Agreement and the Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrantand thereof, will be validly issued, fully paid and non-assessable and conform to the description descriptions thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Redeemable Warrants and Representatives' Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Representatives' Warrant Agreement and the Representative's Warrant Agreement of the Securities to be sold by the CompanyCompany hereunder and thereunder, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities such Securities, free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (CD) the consummation by the Company of any of its obligations under this Agreement, the Representatives' Warrant Agreement or the Warrant Agreement, or (DE) resales of the Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or the Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or pending, threatened or or, to the counsel's knowledge, contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of agreements, contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, arbitration, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, those having jurisdiction over pertaining to environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), ) or involving the properties or business of of, the Company which (1I) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), or (2II) questions the validity of the capital stock of the Company or of this Agreement, the Representatives' Warrant Agreement or the Representative's Warrant Agreement or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or court, arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Representatives' Warrant Agreement or the Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Representatives' Warrant Agreement or the Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement, the Representatives' Warrant Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement, the Representatives' Warrant Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Representatives' Warrant Agreement and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company Company, enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights obligations to indemnity indemnify or contribution contribute to losses may be limited by applicable law), and neither . None of the Company's execution or delivery of this Agreement, the Representatives' Warrant Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinherein and therein, or the conduct of its business as described in the Registration Statement, Statement and the Prospectus, Prospectus and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate of incorporation or by-laws bylaws of the Company, (B) any license, contract, indenture, mortgage, lease, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is are or may be subject, or any indebtedness, or (C) any statute, statute applicable to the Company or (D) any judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its their activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any arbitrator, court, regulatory body, administrative agency, government agency or other body body, domestic or foreign (other than such as may be required under Blue Sky laws"blue sky" laws and the rules of the NASD, as to which no opinion need be rendered) ), is required in connection with the issuance of the Securities pursuant to the Prospectus and Prospectus, the Registration Statement, this Agreement, the Representatives' Warrant Agreement and the Warrant Agreement, or the performance of this Agreement, the Representatives' Warrant Agreement and the Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach ofhas good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in default underthe Prospectus to be owned or leased by it, any term in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan other restrictions or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and each Selling Securityholder contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's and each Selling Securityholder's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, Selling Securityholder of its covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Representatives shall have received from Underwriters' Counselan opinion dated the Firm Closing of Bake▇ & ▇ott▇, such opinion or opinions with respect to the organization of ▇.L.P., counsel for the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) execution and delivery of this Agreement has been duly organized and is validly existing as a corporation in good standing under the laws authorized by all necessary corporate action of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on and this Agreement has been duly executed and delivered by the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company Firm Securities have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security all necessary corporate action of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable and conform to nonassessable; (iii) the description thereof contained statements set forth under the heading "Description of Capital Stock" in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely , insofar as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity summarize certain provisions of the capital stock of the Company or this Agreement or the Representative's Warrant or Company, provide a fair summary in all material respects of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as requiredsuch provisions; and (E) except as disclosed the statements set forth under the headings "Business--Regulation," "Business--Royalty Matters," "Business--Environmental Matters," "Business--Legal Proceedings--NYLOG Litigation" and "Business--Legal Proceedings--KN Litigation" in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to insofar as such counsel) in which an adverse decision which may result in statements constitute a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations summary of the Companylegal matters, which could materially adversely affect the present documents or prospective ability proceedings referred to therein, provide a fair summary in all material respects of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreementsuch legal matters, documents and proceedings;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder shall be are subject to the continuing accuracy satisfaction of each of the following conditions and agreements:
(a) All of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which contained in this Agreement shall be true and correct, or true and correct in form all material respects where such representations and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective warranties are not later than 12:00 p.m., New York timequalified by materiality or Material Adverse Effect, on the date of this Agreement or and, in each case after giving effect to the transactions contemplated hereby, on the Delivery Date, except that if a representation and warranty is made as of a specific date, and such later date is expressly referred to therein, such representation and time as warranty shall be consented true and correct (or true and correct in all material respects, as applicable) as of such date. The Company shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by it at or prior to the Delivery Date.
(b) The Prospectus shall have been timely filed with the Commission in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, accordance with Section 5(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or shall be pending or contemplated threatened by the Commission Commission; and any request on the part of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with in all material respects.
(c) All corporate proceedings and other legal matters incident to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A authorization, form and validity of the Rules and RegulationsRegistration Statement, the price Preliminary Prospectus, the Prospectus, this Agreement and the Shares, and all other legal matters relating to the offering, issuance and sale of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to such Rule 430A counsel to the Underwriters.
(d) No action shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules taken and Regulations within the prescribed time periodno statute, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filingrule, regulation or a post-effective amendment providing such information order shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 enacted, adopted or issued by any governmental agency that would, as of the Rules Delivery Date, prevent the issuance of the Shares or consummation of the transactions contemplated herein. Except as disclosed in the Prospectus, no action, suit or proceeding shall have been commenced and Regulations.
(b) The Representative shall not have advised be pending against or affecting or, to the knowledge of the Company, threatened against the Company that the Registration Statement, before any court or arbitrator or any amendment theretogovernmental body, contains an untrue statement agency or official that, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of fact which, in the Representative's opinion, is material, Preliminary Prospectus or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ce) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' Counselcertificates substantially in the form of Exhibit A, such dated the Delivery Date, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company.
(f) The Underwriters shall have received on the Delivery Date an opinion or opinions with respect of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the organization Company, dated the Delivery Date and addressed to the Underwriters, substantially in the form of Exhibit B hereto and in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(g) The Underwriters shall have received on the Delivery Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the validity Delivery Date and addressed to the Underwriters, substantially in the form of Exhibit D hereto and in form and substance reasonably satisfactory to the Securities, Underwriters and counsel to the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel .
(h) The Underwriters shall have received such papers on the Delivery Date an opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, dated the Delivery Date and information as they request in form and substance satisfactory to enable them to pass upon such mattersthe Underwriters.
(di) At Closing DateThe Underwriters shall have received a “comfort letter” from PricewaterhouseCoopers LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. In addition, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇ya “bring-down comfort letter” from PricewaterhouseCoopers LLP, dated as of the Closing Delivery Date, addressed to the Underwriters and in form and substance reasonably satisfactory to Underwriters' Counsel, the Underwriters and counsel to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were madeUnderwriters.
(iij) The Underwriters shall have received a “comfort letter” from Ernst & Young LLP, independent public accountants for NCS HealthCare, Inc., dated the date of this Agreement, addressed to such counsel's knowledgethe Underwriters and in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. In addition, the Company does not own an equity interest Underwriters shall have received a “bring-down comfort letter” from Ernst & Young LLP, dated as of the Delivery Date, addressed to the Underwriters and in any other corporation, partnership, joint venture, trust or other business entity;form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(iiik) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, All government authorizations required to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable be obtained by the Company, conform if any, in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance connection with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to Shares as contemplated under this Agreement and the Representative's Warrant performance of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its ’s obligations under this Agreement, or (D) resales of the Securities Agreement shall be in connection with the distribution contemplated herebyfull force and effect.
(ivl) The Underwriters shall have been furnished with wiring instructions for the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use application of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness proceeds of the Registration Statement has been issued Shares in accordance with this Agreement and no proceedings for that purpose such other information as it may reasonably request.
(m) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, shall have been instituted furnished with such documents as they may reasonably request to enable them to review or are pending pass upon the matters referred to in this Section 7 and in order to evidence the accuracy, completeness or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form satisfaction in all material respects with the requirements of any of the Acts and the Rules and Regulationsrepresentations, warranties or conditions contained in this Agreement.
(vin) The Shares shall be eligible for trading on the NYSE, subject to official notice of issuance.
(o) Since the best of such counsel's knowledgeExecution Time there shall not have been any change, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporatedany development involving a prospective change, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental bodygeneral affairs, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the conditionmanagement, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business ’ equity or results of operations of the CompanyCompany on consolidated basis, otherwise than as set forth or contemplated in the Prospectus, the effect of which could materially adversely affect is, in the present reasonable judgment of ▇▇▇▇▇▇ Brothers, so material and adverse as to make it impracticable or prospective ability inadvisable to proceed with the offering or the delivery of the Company to perform its obligations under this Agreement or which Shares being delivered on such Delivery Date on the terms and in any the manner draws into question contemplated in the validity or enforceability of this Agreement;Prospectus.
(viip) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as Subsequent to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and (i) no downgrading shall have occurred in the corporate or issuer rating accorded the Company by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Representative's WarrantSecurities Act and (ii) no such organization shall have publicly announced or notified the Company in writing that it has under surveillance or review, with possible negative implications, its performance hereunder and thereunder, its consummation corporate or issuer rating of the transactions contemplated herein, or Company.
(q) Subsequent to the conduct execution and delivery of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of this Agreement there shall not have occurred any of the terms following: (i) trading in securities generally on the New York Stock Exchange or provisions of, the Nasdaq National Market or constitutes or will constitute a default under, or result trading in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) securities of the Company pursuant to on any exchange, shall have been suspended, the terms ofsettlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (Aii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the certificate of incorporation or by-laws of United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subjectUnited States, or any indebtednessthere shall have been a presidential declaration of a national emergency or a declaration of war by the United States, or (Civ) any statutethere shall have occurred a material adverse change in general domestic or international economic, judgmentpolitical or financial conditions, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental as a result of terrorist activities, or similar matters), domestic or foreign, having jurisdiction over the Company or any effect of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect international conditions on the Companyfinancial markets in the United States shall be such, as to make it in the reasonable judgment of ▇▇▇▇▇▇ Brothers, impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(viiir) except as described in By the Prospectusdate of execution and delivery of this Agreement, no consentthe Company shall have furnished to the Representatives each of the letters required to be furnished under Section 7(z) of the underwriting agreement of even date herewith among the Company, approval, authorization or order, Omnicare Capital Trust I and no filing with, any court, regulatory body, government agency or other body (other than the underwriters named therein to such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required underwriters in connection with the issuance offer and sale of $250,000,000 aggregate liquidation amount of Trust Preferred Income Equity Redeemable Securities. The documents required to be delivered by this Section 7 will be delivered at the Securities pursuant office of counsel for the Company (or at such other location agreed to between the Prospectus Company and the Registration Statement, Underwriters) on the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iDelivery Date.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the each Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; , and the performance by the Company on and as of the each Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 5:00 p.m. New York time, on the date subsequent to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Representative. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Units and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretothereof, contains shall not contain an untrue statement of fact which, in the Representative's opinion, is materiala material fact, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization At each of the Company, the validity of the Securities, the Registration Statement, the Prospectus Effective Date and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At each Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Blau, Kramer, Wactlar & Veith, counsel to the CLieb▇▇▇▇▇y, ▇.C. (the "Firm") counsel to the Company, dated the Effective Date and each Closing Date, respectively, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselMillennium, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its jurisdictionincorporation; (B) is duly qualified and licensed for the transaction of business and in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property and assets or the conduct of its Business makes such qualification necessary except where the failure to be so qualified does not now have and will not in the future have a Material Adverse Effect; and (BC) has all requisite corporate power and authority, and has obtained any and all material authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingbodies, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the CompanyBusiness. The disclosures in the Registration Statement concerning the effects of federalFederal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct accurate in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Firm has not been engaged to such counsel's knowledge, perform legal services in connection with any transaction whereby the Company does not own would acquire an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus (and any amendment or supplement thereto, ) under the heading "Capitalization", and, to such counsel's knowledge, after due inquiry" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued authorized; all outstanding shares of Common Stock have been fully paid for and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or and of the Representative's WarrantWarrant Agreement, will be validly issued, issued fully paid and non-assessable and assessable. The Securities conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all . All corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; . The Representative's Units constitute valid and binding obligations of the certificates representing Company to issue and sell, upon exercise thereof and payment therefor, the Securities are in due number and proper formtype of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Warrant Agreement and the Representative's Warrant UPO of the Securities to be sold by the Companyand Representative's Units, as applicable, the Underwriters will acquire title to the Firm Units, and the holders of Representative will acquire title to the Representative's WarrantUnits, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, ; (B) the purchase by the Underwriters and the Representative of the Securities Firm Units and the Representative's Units, respectively, from the Company, ; (C) the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the UPO or (D) resales of the Securities Firm Units in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become been declared effective by the Commission not later than 12:00 p.m.5:30 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at the Firm Closing Date and each Option Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselcounsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, and the opinion of its counsel is material, material or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, or the opinion of its counsel is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior The Company's registration statement pursuant to the Closing Date, Exchange Act on Form 8-A has been declared effective by the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such mattersCommission.
(d) At The Representatives shall have received an opinion, dated the Firm Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CBroad and ▇▇▇▇▇y▇ and ▇▇▇ ▇▇▇▇▇▇ Van der Kroef Advocaten Digsselholfplantsoen, dated counsels for the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselCompany, to the effect that:
(i) the Company and each of its subsidiaries listed in Exhibit 21.1 to the Registration Statement (Athe "Subsidiaries") has have been duly organized and is are validly existing as a corporation corporations in good standing under the laws of its jurisdictiontheir respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company and the Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have corporate power to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus, and (B) the Company has all requisite corporate power to enter into this Agreement and authority, to carry out all the terms and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (provisions hereof to be carried out by it including, without limitation, those having jurisdiction over environmental or similar matters)to issue, materially necessary to own or lease its properties sell and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating deliver to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in Underwriters the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state Securities to be issued and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entitysold hereunder;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except as otherwise set forth in the Prospectus, are owned beneficially by the Company free and clear of any security interests, liens, encumbrances, equities or claims;
(iv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof nonassessable, have no rights of rescission been issued in compliance with respect thereto, all applicable federal and are state securities laws and were not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive rights or other similar rights of any stockholder contained in to subscribe for or purchase securities; the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, Securities have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable nonassessable; the Securities have been duly filed for trading on the American Stock Exchange, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities; and conform no holders of securities of the Company are entitled to have such securities registered under the description thereof contained Registration Statement;
(v) the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the holders thereof will not be statements set forth under the heading "Legal Proceedings" in the Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, provide a fair summary of such legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement, the Representative's Warrant Agreement, and the Warrant Agreement between the Company and Warrant Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company and each constitutes a legally valid and binding agreement in accordance with their terms subject to bankruptcy exceptions;
(vii) (A) no legal or governmental proceedings are pending to which the Company or any liability under the laws of the State Subsidiaries is a party or to which the property of New York as currently in effect solely as such holders; all corporate action the Company or any of the Subsidiaries is subject that are required to be taken for described in the authorizationRegistration Statement or the Prospectus and are not described therein, issue and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or any of the Subsidiaries or with respect to any of their respective properties and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) the issuance, offering and sale of the Securities has been duly and validly taken; and to the certificates representing Underwriters by the Securities are in due and proper form. Upon the issuance and delivery Company pursuant to this Agreement and Agreement, the compliance by the tCompany with the other provisions of this Agreement, the Representative's Warrant Agreement, the Warrant Agreement between the Company and Warrant Agent and the consummation of the other transactions herein contemplated do not (A) require the consent, approval, authorization, order, registration or qualification of or with any court, governmental authority or governmental agency, except such as have been obtained and such as may be required by the NASD or as required under state securities or blue sky laws, or (B) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of the Subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or Subsidiaries;
(ix) there are no outstanding securities of the Company or the Subsidiaries convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company or the Subsidiaries and except as disclosed in the Prospectus, there are no outstanding or authorized options, warrants or rights of any character obligating the Company or the Subsidiaries to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and there is no holder of any securities of the Company or the Subsidiaries or any other person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Securities or the right to be sold by have any shares of Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivx) the Registration Statement is and all post-effective amendments thereto, if any, have become effective under the Acts, andAct; any and all filings, if applicableany, filing required by Rule 430A of all pricing information has the Act Rules and Regulations have been timely made in the appropriate form under Rule 430A, made; and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose with respect thereto have been instituted or are pending or threatened or contemplated under the ActsAct; any required filing of the Prospectus, and any supplement thereto pursuant to the Act Rules and Regulations has been made in the manner and within the time period required;
(vxi) the Original Registration Statement and each of the Preliminary Prospectusamendment thereto, the any Rule 462(b) Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (in each case, other than the financial statements and other financial and statistical data included information contained therein, as to which such counsel need express no opinion need be renderedopinion) comply as to form in all material respects with the applicable requirements of the Acts Act and the Act Rules and Regulations;
(xii) except as disclosed in the Prospectus (i) there is no claim or any action by any person pertaining to a proceeding pending or threatened, that challenges the ownership or use by the Company of any copyright, patent, trademarks, service marks, service name and trade names (the "Intellectual Property") used by the Company in the context of its business and the Company owns and has full right, title and interest in and do, or has a valid and exclusive right to, all Intellectual Property necessary in the conduct of its business as presently conducted or as proposed to be conducted as described in the Prospectus.
(vixiii) the certificates representing the warrants and shares of common with units, warrants and shares of common stock are in due and proper form. The securities conformed to the best description thereof set forth in the Prospectus;
(xiv) in connection with the Registration Statement, such counsel has participated in discussions and conferences with certain of the officers and Representatives of the Company, Representatives of the Underwriters, counsel to the Underwriters, and the independent accountants for the Company at which the contents of the Registration Statement and the Prospectus were discussed. Such counsel has no reason to believe that either the Registration Statement, as of its effective date, or the Prospectus, or any amendment or supplement thereto, as of their respective effective or issue dates, or as of the date hereof, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(xv) such counsel's knowledge, (A) there are no agreements, counsel has read all contracts or and other documents required by the Acts to be described specifically enumerated in the Registration Statement and the Prospectus Prospectus, and filed as exhibits to such contracts and other documents are fairly summarized or described therein, fairly present the Registration Statement other than those described in the Registration Statement (or information required to be filed under shown; conform in all material respects to the Exchange Act if upon such filing they would be incorporateddescriptions thereof contained therein, in whole or in part, by reference therein) and the Prospectus and are filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as if required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiixvi) except as described in the Prospectus, no consentneither the Company nor any of the Subsidiaries owns any interest in any corporation, approvalpartnership, authorization or orderjoint venture, and no filing with, any court, regulatory body, government agency trust or other body (other than business entity. In rendering such opinions, such counsel may set forth that as may be required under Blue Sky lawsto certain matters of fact, where appropriate, such counsel is relying on one or more certificates of public officials, governmental agencies or officers of the Company. In addition, as to which no opinion need be rendered) is required in connection with matters of law, counsel for the issuance Company may rely as to matters involving the application of laws other than the laws of the Securities pursuant United States, except for laws dealing with matters within the jurisdiction of the laws of Florida, the laws of Delaware and jurisdictions in which they are admitted, to the Prospectus extent such counsel deems proper and to the extent specified in such opinion, upon an opinion or opinions (in form and substance satisfactory to the Underwriters' counsel) of ______________________________, References to the Registration Statement and the Registration StatementProspectus in this paragraph (d) shall include any amendment or supplement thereto at the date of such opinion.
(e) The Representatives shall have received from KPMG LLP a letter or letters dated, respectively, the performance of this Agreement date hereof and the transactions contemplated herebyFirm Closing Date, in form and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants within the meaning of the Act and the Act Rules and Regulations;
(ixii) to such counsel's knowledgein their opinion, the properties audited consolidated condensed financial statements and business of the Company conform to the description thereof contained schedules and pro forma financial statements examined by them and included in the Registration Statement and the ProspectusProspectus comply in form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations;
(xiii) to such counsel's knowledge, on the Company is not basis of (A) their review in breach of, or in default under, any term or provision accordance with standards established by the American Institute of Certified Public Accountants of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any unaudited interim consolidated condensed financial statements of the Company may be bound and its consolidated subsidiaries as indicated in their report included in the Registration Statement and Prospectus, (B) a reading of the unaudited amounts for sales, net sales, net loss before income taxes or to which the property total or assets (tangible or intangible) per share amounts of any net loss of the Company iand its consolidated subsidiaries for the years ended December 31, 2001 and December 31, 2000 and of the unaudited consolidated condensed financial statements of the Company and its consolidated subsidiaries for the periods from which such amounts are derived, carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (iii), (C) a reading of the minute books of the shareholders, the board of directors and any committees thereof of the Company and each of its consolidated subsidiaries and (D) inquiries of certain officials of the Company and its consolidated subsidiaries who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that:
(1) the unaudited consolidated condensed financial statements of the Company and its consolidated subsidiaries included in the Registration Statement and the Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations thereunder or are not in conformity with g
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject ------------------------------------------- Underwriter to purchase and pay for the Firm Preferred Securities and, following exercise of the option granted by the Offerors in Section 1 of this Agreement, the Option Preferred Securities, are subject, in the Underwriter's sole discretion, to the continuing accuracy of and compliance with the representations and warranties and agreements of the Company Offerors herein as of the date hereof and as of the Closing Date and each (or in the case of the Option Closing DatePreferred Securities, if any, as if they had been made on and as of the Closing Date or each Option Closing Date), as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the written statements of the officers of the Company Offerors made pursuant to the provisions hereof; and , to the performance by the Company on and as Offerors of the Closing Date and each Option Closing Date, if any, of its their covenants and obligations hereunder and to the following further additional conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective prior to the time of execution hereof, the Registration Statement shall have become effective not later than 12:00 p.m.10:00 a.m., New York St. Louis time, on the date first business day following the time of execution of this Agreement Agreement, or at such later time and date and time as shall be consented the Underwriter may agree to in writing by writing. If required, the Representative, and, at Closing Date Prospectus and each Option Closing Date, if any, no any amendment or supplement thereto shall have been timely filed in accordance with Rule 424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto shall have been issued under the 1933 Act or any applicable state securities laws and no proceedings for that purpose shall have been instituted or shall be pending pending, or, to the knowledge of the Offerors or the Underwriter, shall be contemplated by the Commission and or any state authority. Any request on the part of the Commission or any state authority for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the reasonable Underwriter's satisfaction and to the satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted counsel to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsUnderwriter.
(b) The Representative Underwriter shall not have advised the Company at or before the Closing Date (and, if applicable, the Option Closing Date) that the Registration StatementStatement or any post-effective amendment thereto, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's opinion, is material, material or omits to state a any fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that (in the Prospectus, case of the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, ) not misleading.
(c) On or prior All corporate proceedings and other legal matters incident to the Closing Dateauthorization, form and validity of this Agreement, the Representative Trust Agreement, and the Designated Preferred Securities, and the authorization and form of the Registration Statement and Prospectus, other than financial statements and other financial data, and all other legal matters relating to this Agreement and the transactions contemplated hereby or by the Trust Agreement shall be satisfactory in all respects to counsel to the Underwriter, and the Offerors and the Subsidiaries shall have received from Underwriters' Counsel, furnished to such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers counsel all documents and information as relating thereto that they may reasonably request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇ & ▇▇▇▇▇, L.L.P., counsel to the Offerors, shall have furnished to the Underwriter their signed opinion, dated the Closing Date or the Option Closing Date, addressed to as the Underwriters and case may be, in form and substance satisfactory to Underwriters' Counselcounsel to the Underwriter, to the effect that:
(i) the The Company (A) has been duly organized incorporated and is validly existing and in good standing under the laws of the State of Oklahoma, and is duly registered as a corporation bank holding company under the BHC Act. Each of the Subsidiaries is duly incorporated, validly existing and in good standing under the laws of its jurisdiction, jurisdiction of incorporation. Each of the Company and (B) the Subsidiaries has all requisite full corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and to conduct its business as such business is described in the Prospectus; the Company Prospectus and is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice currently conducted. All outstanding shares of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets capital stock of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable; nonassessable except to the holders thereof have extent such shares may be deemed assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o and, except as disclosed in the Prospectus, there are no rights outstanding rights, options or warrants to purchase any such shares or securities convertible into or exchangeable for any such shares. The Bank is a member of rescission with respect theretothe Federal Reserve System, and no proceedings for termination or revocation of such membership are not subject pending or, to personal liability under the laws best knowledge of such counsel, threatened. The deposit accounts of the State of New York as currently in effect Bank are insured by reason of being such holders; the FDIC up to the maximum amount provided by law, and none no proceedings for the termination or revocation of such securities were issued in violation insurance are pending or, to the best knowledge of the preemptive rights of any holders of any security such counsel, threatened.
(ii) The capital stock, Debentures and Guarantee of the Company contained in and the certificate of incorporation equity securities of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and Trust conform to the description thereof contained in the Prospectus; . The capital stock of the holders thereof will not be subject to any liability Company authorized and issued as of ______________, 1997 is as set forth under the laws caption "Capitalization" in the Prospectus, has been duly authorized and validly issued, and is fully paid and nonassessable. The form of certificates to evidence the Designated Preferred Securities has been approved by or on behalf of the State Trust and is in due and proper form and complies with all applicable requirements. There are no outstanding rights, options or warrants to purchase, no other outstanding securities convertible into or exchangeable for, and no commitments, plans or arrangements to issue, any shares of New York capital stock of the Company or equity securities of the Trust, except as currently described in effect solely as such holders; the Prospectus.
(iii) The Offerors have all requisite corporate power and authority to issue, sell and deliver the Designated Preferred Securities and Debentures in accordance with and upon the terms and conditions set forth in this Agreement, the Indenture, the Trust Agreement, the Registration Statement and the Prospectus. All corporate action required to be taken by the Offerors for the authorization, issue issuance, sale and sale delivery of the Designated Preferred Securities and Debentures in accordance with such terms and conditions has been validly and sufficiently taken. All of the Designated Preferred Securities have been duly and validly authorized and, when delivered in accordance with this Agreement will be duly and validly issued, fully paid and nonassessable, and will conform to the description thereof in the Registration Statement, the Prospectus and the Trust Agreement. The Designated Preferred Securities have been approved for quotation on the Nasdaq National Market subject to official notice of issuance. There are no preemptive or other rights to subscribe for or to purchase, and other than as disclosed in the Prospectus no restrictions upon the voting or transfer of, any shares of capital stock or equity securities of the Offerors or the Subsidiaries pursuant to the corporate charter, by-laws or other governing documents (including without limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or, to the best of such counsel's knowledge, any agreement or other instrument to which either Offeror or any of the Subsidiaries is a party or by which either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust power to enter into and perform their obligations under this Agreement, and this Agreement has been duly and validly taken; authorized, executed and delivered by the certificates representing Offerors and constitutes the Securities are legal, valid and binding obligations of the Offerors enforceable in due accordance with its terms, except as the enforcement hereof or thereof may be limited by general principles of equity and proper form. Upon by bankruptcy or other laws relating to or affecting creditors' rights generally, and except as the issuance indemnification and delivery pursuant to this contribution provisions hereof may be limited under applicable laws and certain remedies may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Representative's Warrant of Guarantee has been duly qualified under the Securities to be sold Trust Indenture Act, has been duly authorized, executed and delivered by the Company, the Underwriters and the holders is a valid and legally binding obligation of the Representative's WarrantCompany enforceable in accordance with its terms, as the case may be, will acquire good and marketable title subject to the Securities free effect of bankruptcy, insolvency, reorganization, receivership, moratorium and clear other laws affecting the rights and remedies of any pledgecreditors generally and of general principles of equity;
(vi) The Debentures have been duly authorized, lienexecuted, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable authenticated and delivered by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, are entitled to the benefits of the Indenture and are legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity;
(Cvii) consummation The Expense Agreement has been duly authorized, executed and delivered by the Company of any of its obligations under this AgreementCompany, or (D) resales and is a valid and legally binding obligation of the Securities Company enforceable in connection accordance with its terms, subject to the distribution contemplated hereby.effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity;
(ivviii) To the Registration Statement is effective under the Acts, and, if applicable, filing best of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use neither of the Preliminary Offerors nor any of the Subsidiaries is in breach or violation of, or default under, with or without notice or lapse of time or both, its corporate charter, by-laws or governing document (including without limitation, the Trust Agreement). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, and the Trust Agreement do not and will not conflict with, result in the creation or imposition of any lien, claim, charge, encumbrance or restriction upon any property or assets of the Offerors or the Subsidiaries or the Designated Preferred Securities pursuant to, or constitute a breach or violation of, or constitute a default under, with or without notice or lapse of time or both, any of the terms, provisions or conditions of the charter, by-laws or governing document (including without limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or to the best of such counsel's knowledge, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, franchise, license or any other agreement or instrument to which either Offeror or the Subsidiaries is a party or by which any of them or any of their respective properties may be bound or any order, decree, judgment, franchise, license, Permit, rule or regulation of any court, arbitrator, government, or governmental agency or instrumentality, domestic or foreign, known to such counsel having jurisdiction over the Offerors or the Subsidiaries or any of their respective properties. No authorization, approval, consent or order of, or filing, registration or qualification with, any person (including, without limitation, any court, governmental body or authority) is required under Oklahoma law in connection with the transactions contemplated by this Agreement in connection with the purchase and distribution of the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge, holders of securities of the Offerors either do not have any right that, if exercised, would require the Offerors to cause such securities to be included in the Registration Statement or have waived such right. To the best of such counsel's knowledge, neither the Offerors nor any of the Subsidiaries is a party to any agreement or other instrument which grants rights for or relating to the registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and the Prospectus, (i) no action, suit or proceeding at law or in equity is pending or threatened in writing to which the Offerors or the Subsidiaries is or may be a party, and (ii) no action, suit or proceeding is pending or threatened in writing against or affecting the Offerors or the Subsidiaries or any of their properties, before or by any court or governmental official, commission, board or other administrative agency, authority or body, or any arbitrator, wherein an unfavorable decision, ruling or finding could have an adverse effect on the consummation of this Agreement or the issuance and sale of the Designated Preferred Securities as contemplated herein or the condition (financial or otherwise), earnings, affairs, business, or results of operations of the Offerors and the Subsidiaries on a consolidated basis or which is required to be disclosed in the Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or filing, registration or qualification with, any person (including, without limitation, any court, governmental body or authority) is required in connection with the transactions contemplated by this Agreement, the Trust Agreement, the Registration Statement and the Prospectus, except such as may be required by, and have been obtained under, the 1933 Act, the Trust Indenture Act, state securities laws, or Interpretations or Rules of the NASD in connection with the purchase and distribution of the Designated Preferred Securities by the Underwriter, and from the Nasdaq Stock Market's National Market relating to the listing of the Designated Preferred Securities.
(xii) The Registration Statement and the Prospectus and any amendments or supplements thereto and any documents incorporated therein by reference (other than the financial statements or other financial data included therein or omitted therefrom and Underwriter's Information, as to which such counsel need express no opinion) comply as to form with the requirements of the 1933 Act and the 1933 Act Regulations as of their respective dates of effectiveness.
(xiii) There are no contracts, agreements, leases or other documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not so disclosed or filed.
(xiv) The statements under the captions "Capitalization", "Description of the Preferred Securities", "Description of the Subordinated Debentures", "Description of the Guarantee", "Relationship Among the Preferred Securities, the Subordinated Debentures and the Guarantee", "Certain Federal Income Tax Consequences", "ERISA Considerations", "Regulation of Branch and Interstate Banking", and "Supervision and Regulation" in the Prospectus or incorporated therein by reference, insofar as such statements constitute a summary of legal and regulatory matters, documents, instruments or proceedings referred to therein are accurate descriptions of the matters summarized therein and fairly present the information called for with respect to such legal and regulatory matters, documents, instruments and proceedings, other than financial and statistical data as to which said counsel expresses no opinion or belief.
(xv) Such counsel has been advised by the staff of the Commission that the Registration Statement has become effective under the 1933 Act; any part required filing of any thereof or the Prospectus pursuant to Rule 424(b) has been made within the time period required by Rule 424(b); to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or a stop order are pending or threatened or contemplated under by the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and RegulationsCommission.
(vixvi) Except as set forth in the Prospectus, to the best of such counsel's knowledge, (A) there are no agreements, contracts contractual encumbrances or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)restrictions, or involving legal restrictions (excluding any encumbrances or restrictions of general application to national banks contained in laws, rules and regulations of applicable regulatory authorities) on the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iSu
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, with respect to the Company as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Representatives shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance reasonably satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of organization, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, except where the failure to be so qualified or licensed would not have a Material Adverse Effect and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus, except where any such failure would not have a Material Adverse Effect; to the Company is not qualified as a foreign corporation in any jurisdiction (to best of such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, knowledge the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to the best of such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) based solely upon our review of the Company's minute book and stock ledger the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's Description of Securities." To the best of our knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representatives' Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessableassessable to the best of our knowledge; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company contained in or to the certificate best of incorporation our knowledge any contractual preemptive rights of any holder of any security of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities Shares, the Representatives' Warrants and the Representatives' Shares to be sold by the Company hereunder and under the Representatives' Warrant Agreement are not and will not be subject to any statutory preemptive or to the best of our knowledge other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentsecurityholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities Shares, the Representatives' Warrants and the Representatives' Shares has been duly and validly taken; , and the certificates representing the Securities Shares and the Representatives' Warrants are in due and proper form. The Representatives' Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable). Upon the issuance and delivery pursuant to this Agreement and the Representative's Representatives' Warrant Agreement of the Securities Shares and the Representatives' Warrants, respectively, to be sold by the Company, the Underwriters and the holders of the Representative's WarrantRepresentatives, as the case may berespectively, will acquire good and marketable title to the Securities Shares and the Representatives' Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebywhatsoever.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, and to such counsel's knowledge, after due inquiry, the best of our knowledge no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over involving environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed disclosed, (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Representatives' Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representatives' Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representatives' Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Representatives' Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement and the Representative's Representatives' Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentatives' Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to thereto (other than the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, Company) constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantRepresentatives' Warrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, Prospectus and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument known to us and to which the Company is a party or by which it is or may be bound or to which any of its respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) (i) any statute, judgment, decree, order, rule or regulation or (ii) any judgement, decree or order, known to such counsel, applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities Shares (except for the consents under the Act and the Exchange Act which have been obtained) pursuant to the Prospectus and Prospectus, the Registration Statementissuance of the Representatives' Warrants, the performance of this Agreement and the Representatives' Warrant Agreement (except as may be required under the Act and the Exchange Act) and the transactions contemplated herebyhereby and thereby;
(ix) to the best knowledge of such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iis subject or affected except as where such breac
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiary (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; each of the Company and the Subsidiary is not qualified as a foreign corporation and has been doing business in any jurisdiction (to compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledgeand, neither the Company nor the Subsidiary has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the CompanyCompany or the Subsidiary. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to the Company owns, directly or indirectly, one hundred percent (100%) of the outstanding capital stock of the Subsidiary, and all such counsel's knowledgeshares have been validly issued, are fully paid and non-assessable, were not issued in violation of any preemptive rights and are owned free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever.
(iii) except as described in the Prospectus, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION", and, to such counsel's knowledge, after due inquiry, and neither the Company nor the Subsidiary is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement of the Firm Securities and the Option Securities and the Representative's Warrant of the Securities Warrants to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company, and the purchase by the Representative of the Representative's Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement or the Representative's Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(ivv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(vvi) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vivii) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company or the Subsidiary is a party or by which it is bound, including any document to which the Company or the Subsidiary is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company or the Subsidiary any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company or the Subsidiary which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company or the Subsidiary before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the CompanyCompany or the Subsidiary, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(viiviii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for therein; and each of this Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company or the Subsidiary pursuant to the terms of, (A) the certificate of incorporation or by-laws of the CompanyCompany or the Subsidiary, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company or the Subsidiary is a party or by which it is or they are or may be bound or to which any of its or their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company or the Subsidiary of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or the Subsidiary or any of its their respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Firm Securities and the Option Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Sources: Underwriting Agreement (Norton Motors International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the ------------------------------------------- Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been or have made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company (where applicable) made pursuant to the provisions hereof; and the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Common Stock and Preferred Stock to be sold hereunder and any price-price related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request request, and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg ▇▇▇▇ & VeithPriest, LLP, New York, New York, special counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Representative and Underwriters' Counsel, Counsel to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and the State of Delaware. Each subsidiary of the Company listed in Exhibit 21 to the Registration Statement (Bthe "Subsidiaries") has all requisite corporate power been duly incorporated or formed and authority, is existing and has obtained any in good standing under the laws of the jurisdiction of its incorporation or organization. The Company and all authorizations, approvals, orders, licenses, certificates, franchises the Subsidiaries are duly qualified and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified good standing as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the Company); to such counsel's assets or properties, business, results of operations or financial condition of the Company or its subsidiaries, taken as a consolidated whole. To our knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures no subsidiaries other than those identified in the Registration Statement concerning the effects of federalStatement, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in control, directly or indirectly, any other corporation, partnership, joint venture, trust association or other business entityorganization which is material to the Business other than as described in the Registration Statement and the Prospectus. The Company and the Subsidiaries have all requisite corporate power and authority to own, lease and license its assets and properties and conduct its businesses as now being conducted and as described in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits as may be necessary to enter into, deliver and perform this Agreement and the Representative's Warrant Agreement, and to issue and sell the Securities (except as may be required under the Securities Act and state and foreign Blue Sky laws) under the terms hereof and thereof and to consummate the transactions provided for herein and therein;
(iiiii) Prior to the issuance of Securities in accordance with this Agreement, the Company has a duly authorized, issued had an authorized and outstanding capitalization capital stock as set forth under the caption "Capitalization" in the Registration Statement and the Prospectus. All of the outstanding shares of Common Stock have been duly and validly issued and are fully paid and nonassessable and, to such counsel's knowledge, none of them was issued in violation of any preemptive or other similar right (except for any such right emanating from the Company's Certificate of Incorporation or By-laws, for which no knowledge criteria applies). The Securities, when issued (in the case of the Securities to be sold by the Company) and any amendment or supplement theretosold pursuant to this Agreement and the Representative's Warrant Agreement, under "Capitalization"will be duly and validly issued, fully paid and nonassessable, and, to such counsel's knowledge, after due inquirynone of them will be issued in violation of any preemptive or other similar right (except for any such right emanating from the Company's Certificate of Incorporation or By-laws, for which no knowledge criteria applies). Except as disclosed in the Registration Statement and the Prospectus, to such counsel's knowledge, there is no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of Preferred Stock or Common Stock of the Company is not a party to or bound by any instrumentsecurity convertible into, agreement or other arrangement providing for it to issue any capital stockexercisable or exchangeable for, rights, warrants, options such Preferred Stock or other securities, except for this Agreement and as described in the ProspectusCommon Stock. The Securities, and all other securities issued or issuable by the Company, Securities conform in all material respects to all statements with respect in relation thereto contained in the Registration Statement and the Prospectus. All issued The Representative's Warrants constitute valid and outstanding binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby;
(iii) To such counsel's knowledge, no holders of securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; rights to the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none registration of such securities were issued in violation of under the preemptive rights of any holders of any security of Registration Statement, other than the Company contained Selling Stockholders as identified in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not Registration Statement and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to ;
(iv) this Agreement and the Representative's Warrant Agreement have been duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitute and will constitute the legal, valid and binding obligation of the Securities to be sold by Company enforceable against the CompanyCompany in accordance with its terms, the Underwriters and the holders of the Representative's Warrant, except (A) as the case enforceability thereof may bebe limited by bankruptcy, will acquire good insolvency, moratorium or other similar laws affecting the enforcement of creditors' rights generally and marketable title by general equitable principles and (B) to the Securities free extent that rights to indemnity or contribution under this Agreement may be limited by Federal and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters state securities laws or the holders of the Representative's Warrant). public policy underlying such laws.
(v) No transfer tax or duty is payable (on the assumption that the laws of New York are applicable to such transactions) by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) the consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivvi) to such counsel's knowledge, each of the Registration Statement Company and the Subsidiaries is effective under not in violation of any term or provision of its charter or by-laws;
(vii) neither the Actsexecution, anddelivery and performance of this Agreement or the Representative's Warrant Agreement by the Company nor the consummation of any of the transactions contemplated hereby and thereby (including, if applicablewithout limitation, filing the issuance and sale by the Company of all pricing information has been timely made the Securities) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the appropriate form under Rule 430Abreach of any term or provision of, andor constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company and its subsidiaries pursuant to the terms of, (i) to such counsel's knowledge, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any Subsidiary is a party or by which it or any of its properties or businesses is bound, (ii) any term or provision of its charter or by-laws or (iii) any statute, rule or regulation or, to such counsel's knowledge, after due inquiryany franchise, license, permit, judgment, decree or order, in any such case where termination, acceleration, conflict, breach, default, event of default, lien, charge, encumbrance, whether or not asserted or imposed, would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a consolidated whole;
(viii) except as disclosed in the Registration Statement and the Prospectus, to such counsel's knowledge, there are no pending or threatened actions, suits or proceedings (governmental or otherwise) against or affecting the Company, any of the Subsidiaries or any of their respective properties that, if determined adversely to the Company or any of the Subsidiaries, could individually or in the aggregate have a material adverse effect on the financial condition or business, properties, net worth or results of operations of the Company and the Subsidiaries taken as a consolidated whole, or would materially and adversely affect the ability of the Company or any of the Subsidiaries to perform their respective obligations under this Agreement, or which are otherwise required to be disclosed in the Prospectus under the Rules and Regulations;
(ix) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and issued, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, and the Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, information contained therein as to which such counsel need express no opinion need be renderedopinion) comply as to form in all material respects with the applicable requirements of the Acts Act and the Rules and Regulations.respective rules thereunder;
(vix) the Company is not a Passive Foreign Investment Company ("PFIC") within the meaning of Section 1296 of the United States Internal Revenue Code of 1986, as amended;
(xi) the statements in the prospectus under "Business - Partnership Offerings"; "Certain Transactions"; "Description of Capital Stock"; "Shares Eligible For Future Sale"; and "Certain Federal Income Tax Considerations" insofar as such statements constitute a summary of documents referred to therein or matters of law, are, in all material respects, accurate summaries of the best of material provisions thereof and accurately present the information required with respect to such documents and matters. To such counsel's knowledge, (A) there are no agreements, all contracts or and other documents required by the Acts to be filed as exhibits to, or described in, the Registration Statement have been so filed with the Commission or are described as required in the Registration Statement, as the case may be. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials. Copies of such certificates shall be furnished to the Representative and counsel for the Underwriters. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Representative and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus and filed (except as exhibits specified in the foregoing opinion), on the basis of the foregoing no facts have come to the attention of such counsel which have caused such counsel to believe that the Registration Statement at the time it became effective and at each Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of its date and at each Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any belief with respect to the financial statements and schedules and other than those described financial or statistical data included in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Sources: Underwriting Agreement (Grand Court Lifestyles Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder Underwriter to purchase and pay for the Shares as provided herein shall be subject subject, in the discretion of the Underwriter, to the continuing accuracy of the representations and warranties of the Company contained herein and in each certificate and document contemplated under this Agreement to be delivered to the Underwriter, as of the date hereof and as of the Closing Date and each Time (or the Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing DateTime, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date), if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective under the Securities Act not later than 12:00 p.m.5:30 P.M., New York timeEastern Time, on the date following the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Underwriter; on or prior to the Closing Date and each Time or the Option Closing DateTime, if anyas the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose proceeding shall have been instituted initiated or shall be pending or contemplated by the Commission threatened with respect to a stop order; and any request on the part of by the Commission for additional information shall have been complied with by the Company to the reasonable satisfaction of Underwriters' Counselthe Underwriter. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act.
(b) All corporate proceedings and other legal matters in connection with this Agreement, the forms of the Registration Statement, General Disclosure Package and the Prospectus, and the registration, authorization, issue, sale and delivery of the Shares shall have been reasonably satisfactory to the Underwriter’s counsel, and such counsel shall have been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the matters referred to in this Section 7.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Time or Option Closing Time, as the case may be, there shall not have been any change in the condition (financial or otherwise), earnings, operations, or business of the Company has elected from that set forth in the Registration Statement, the General Disclosure Package or the Prospectus that in the Underwriter’s sole judgment is material and adverse and that makes it, in the Underwriter’s sole judgment, impracticable or inadvisable to rely upon Rule 430A proceed with the public offering of the Shares as contemplated by the Prospectus.
(d) At the Closing Time or the Option Closing Time, as the case may be, the Underwriter shall have received the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., counsel for the Company, dated the date of delivery, addressed to the Underwriter, and in form and scope satisfactory to the Underwriter, to the effect set forth on Exhibit B to this Agreement.
(e) On or prior to the Closing Time or the Option Closing Time, as the case may be, the Underwriter shall have been furnished such information, documents, certificates, and opinions as it may reasonably require in order to evidence the accuracy, completeness, or satisfaction of any of the representations, warranties, covenants, agreements, or conditions herein contained, or as the Underwriter may reasonably request.
(f) At the Closing Time or the Option Closing Time, as the case may be, (i) the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and shall in all material respects conform to the price of requirements thereof, and neither the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to nor the Commission for filing pursuant to Rule 497 of General Disclosure Package nor the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or Prospectus nor any amendment thereto, contains an or supplement thereto shall contain any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
, (cii) On or prior to the Closing Date, the Representative there shall have received from Underwriters' Counselbeen, such opinion or opinions with respect to since the organization respective dates as of the Company, the validity of the Securities, which information is given in the Registration Statement, the Prospectus General Disclosure Package and the Prospectus, no Material Adverse Change or any development involving a prospective Material Adverse Change from that set forth in the Registration Statement, the General Disclosure Package and the Prospectus, and the Company shall not have incurred any material liabilities or entered into any agreements not in the ordinary course of business other related matters than as referred to in the Registration Statement, the General Disclosure Package and the Prospectus, and (iii) except as set forth in the Registration Statement and the Prospectus, no litigation, arbitration, claim, governmental, or other proceeding (formal or informal) or investigation shall be pending, or, to the Company’s knowledge, threatened (or any basis therefor), with respect to the Company or any of the Subsidiaries or any of their respective operations, businesses, properties, or assets that would be required to be set forth in the Registration Statement, wherein an unfavorable decision, ruling, or finding would have a Material Adverse Effect.
(g) At the Closing Time or the Option Closing Time, as the Representatives case may request and Underwriters' Counsel be, the Underwriter shall have received a certificate of the chief executive officer and the chief financial officer of the Company, dated the Closing Time or the Option Closing Time, as the case may be, to the effect that (i) the conditions set forth in Section 7(a) and 7(f) have been satisfied, (ii) as of the date of this Agreement and as of the Closing Time or the Option Closing Time, as the case may be, the representations and warranties of the Company contained herein were and are true and correct, and (iii) as of the Closing Time or the Option Closing Time, as the case may be, the obligations to be performed by the Company hereunder on or prior to such papers time have been fully performed.
(h) At the time this Agreement is executed and at the Closing Time or the Option Closing Time, as the case may be, the Underwriter shall have received a letter, addressed to the Underwriter, and in form and substance reasonably satisfactory to the Underwriter, from ▇▇▇▇▇▇ Bowler Taylor & ▇▇▇▇, the Company’s independent registered public accounting firm, dated the date of delivery:
(i) confirming that they are, and during the period covered by their report(s) included in the Registration Statement and the Prospectus were, independent registered public accountants with respect to the Company within the meaning of the Securities Act and the published Rules and Regulations and stating that the disclosure under the heading entitled “Experts” in the Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated financial statements, including the notes thereto, of the Company included in the Registration Statement audited by them comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(iii) stating that, on the basis of procedures (but not an audit made in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the shareholders and Board of Directors of the Company and committees of such Board of Directors, inquiries to certain officers and other employees of the Company responsible for financial and accounting matters, and other specified procedures and inquiries, nothing has come to their attention that caused them to believe that: (A) any unaudited consolidated financial statements (including, but not limited to, the pro forma and as adjusted financial information) and schedules of the Company included in the Registration Statement and Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published Rules and Regulations under the Securities Act and the Exchange Act or are not fairly presented in conformity with accounting principles generally accepted in the United States (except to the extent that certain note disclosures regarding any interim or “stub” period may have been omitted in accordance with the applicable Rules and Regulations under the Exchange Act) applied on a basis consistent with that of the audited consolidated financial statements appearing therein, (B) there was any change in the capital stock, any increase in short-term or long-term debt of the Company or any decrease in total assets or stockholders’ equity of the Company as of the date of the latest available interim financial statements of the Company and as of a specified date not more than five business days prior to the date of such letter, in each case as compared with the corresponding amounts shown as of June 30, 2006 in the Registration Statement and Prospectus, other than as properly described in the Registration Statement and Prospectus or any change (which shall be set forth therein) that the Underwriter in its sole discretion may accept, or (C) there was a decrease in consolidated net income or in total or per share amounts of consolidated net income of the Company during the period from June 30, 2006, to the date of the latest available interim financial statements of the Company and to a specified date not more than five business days prior to the date of such letter, in each case as compared to the corresponding period in 2005, other than as properly described in the Registration Statement and Prospectus or any decrease (which shall be set forth therein) that the Underwriter in its sole discretion may accept; and
(iv) stating that they have compared specific numerical data and financial information pertaining to the Company set forth in the Registration Statement that have been specified by the Underwriter prior to the date of this Agreement, to the extent that such data and information may be derived from the general accounting records of the Company, and excluding any questions requiring any interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries, and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(i) At the time this Agreement is executed and at the Closing Time or the Option Closing Time, as the case may be, the Underwriter shall have received a letter, addressed to the Underwriter, and in form and substance reasonably satisfactory to the Underwriter, from ▇▇▇▇▇▇ Bowler Taylor & ▇▇▇▇, the independent registered public accounting firm of ▇▇▇▇▇▇▇▇’▇ Casino, Inc. (“▇▇▇▇▇▇▇▇’▇ Casino”), dated the date of delivery:
(i) confirming that they are, and during the period covered by their report(s) included in the Registration Statement and the Prospectus were, independent registered public accountants with respect to ▇▇▇▇▇▇▇▇’▇ Casino within the meaning of the Securities Act and the published Rules and Regulations and stating that the disclosure under the heading entitled “Experts” in the Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the financial statements, including the notes thereto, of ▇▇▇▇▇▇▇▇’▇ Casino included in the Registration Statement audited by them comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations; and
(iii) stating that, on the basis of procedures (but not an audit made in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim financial statements of ▇▇▇▇▇▇▇▇’▇ Casino (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the shareholders and Board of Directors of ▇▇▇▇▇▇▇▇’▇ Casino and committees of such Board of Directors, if any, inquiries to certain officers and other employees of ▇▇▇▇▇▇▇▇’▇ Casino responsible for financial and accounting matters, and other specified procedures and inquiries, nothing has come to their attention that caused them to believe that: (A) any unaudited financial statements (including, but not limited to, the pro forma and as adjusted financial information) and schedules of ▇▇▇▇▇▇▇▇’▇ Casino included in the Registration Statement and Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published Rules and Regulations under the Securities Act and the Exchange Act or are not fairly presented in conformity with accounting principles generally accepted in the United States (except to the extent that certain note disclosures regarding any interim or “stub” period may have been omitted in accordance with the applicable Rules and Regulations under the Exchange Act) applied on a basis consistent with that of the audited financial statements appearing therein, (B) there was any change in the capital stock, any increase in short-term or long-term debt of ▇▇▇▇▇▇▇▇’▇ Casino or any decrease in total assets or stockholders’ equity of ▇▇▇▇▇▇▇▇’▇ Casino as of the date of the latest available interim financial statements of ▇▇▇▇▇▇▇▇’▇ Casino and as of a specified date not more than five business days prior to the date of such letter, in each case as compared with the corresponding amounts shown as of June 30, 2006, in the Registration Statement and Prospectus, other than as properly described in the Registration Statement and Prospectus or any change (which shall be set forth therein) that the Underwriter in its sole discretion may accept, or (C) there was a decrease in net income or in total or per share amounts of net income of ▇▇▇▇▇▇▇▇’▇ Casino during the period from June 30, 2006, to the date of the latest available interim financial statements of ▇▇▇▇▇▇▇▇’▇ Casino and to a specified date not more than five business days prior to the date of such letter, in each case as compared to the corresponding period in 2005, other than as properly described in the Registration Statement and Prospectus or any decrease (which shall be set forth therein) that the Underwriter in its sole discretion may accept.
(j) All proceedings taken in connection with the issuance, sale, transfer, and delivery of the Shares shall be reasonably satisfactory in form and substance to the Underwriter and to counsel for the Underwriter, and the Underwriter shall have received from such counsel for the Underwriter an opinion, dated as of the Closing Time or the Option Closing Time, as the case may be, with respect to the sufficiency of such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as the Underwriter may reasonably require. The Company shall have furnished to such counsel such documents as they request to enable may have requested for the purpose of enabling them to pass upon such matters.
(dk) At Closing The NASD, upon review of the terms of the public offering of the Shares, shall not have objected to the Underwriter’s participation in such offering.
(l) Prior to or on the Effective Date, The American Stock Exchange shall have approved the Shares for listing.
(m) Prior to or on the Effective Date, the Underwriters Company shall have received the favorable opinion of Stursberg & Veith, counsel delivered to the C▇▇▇▇▇yUnderwriter, dated or its counsel, executed copies of the Closing Date, addressed Lock-Up Agreements referred to in Section 2(z) of this Agreement. Any certificate or other document signed by the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledgeChief Executive Officer, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwiseChief Financial Officer, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities Secretary of the Company have been duly authorized and validly issued delivered to the Underwriter or to counsel for the Underwriter shall be deemed a representation and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold warranty by the Company hereunder are not and will not to the Underwriter as to the statements made therein. If any condition to the Underwriter’s obligations hereunder to be subject fulfilled prior to any preemptive or other similar rights of any stockholder contained in at the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof Closing Time or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantOption Closing Time, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in fulfilled, the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or Underwriter may terminate this Agreement or or, if the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or Underwriter so elects, in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iwriting waive
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, with respect to the Company as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representative's Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to material compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to the best of such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiry, Description of Securities," and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities Shares, the Representative's Warrants and the Representative's Shares to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities Shares, the Representative's Warrants and the Representative's Shares has been duly and validly taken; and the certificates representing the Securities Shares and the Representative's Warrants are in due and proper form. The Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant Agreement of the Securities Shares and the Representative's Warrants, respectively, to be sold by the Company, the Underwriters Representative and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Securities Shares and Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the SecuritiesShares, (B) the purchase by the Underwriters of the Securities Shares and the Representative's Warrants, respectively, from the Company, (C) the consummation by the Company of any of its obligations under this Agreement or the Representative's Warrant Agreement, or (D) resales of the Securities Shares in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities Shares pursuant to the Prospectus Prospectus, the issuance of the Representative's Warrants, and the Registration Statement, the performance of this Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach ofhas good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in default underthe Prospectus to be owned or leased by it, any term in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or provision other restrictions or equities of any licensekind whatsoever, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation than those referred to in the Prospectus and liens for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company itaxes
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the each Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; , and the performance by the Company on and as of the each Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 5:00 p.m. New York time, on the date subsequent to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Representative. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretothereof, contains shall not contain an untrue statement of fact which, in the Representative's opinion, is materiala material fact, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization At each of the Company, the validity of the Securities, the Registration Statement, the Prospectus Effective Date and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At each Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Blau, Kramer, Wactlar & VeithLieberman, counsel to P.C. (the C"Fi▇▇") ▇▇▇▇▇ysel to the Company, dated the Effective Date and each Closing Date, respectively, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselFairchild, to the effect that▇▇▇▇:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its jurisdictionincorporation; (B) is duly qualified and licensed for the transaction of business and in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property and assets or the conduct of its Business makes such qualification necessary except where the failure to be so qualified does not now have and will not in the future have a Material Adverse Effect; and (Bc) has all requisite corporate power and authority, and has obtained any and all material authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingbodies, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the CompanyBusiness. The disclosures in the Registration Statement concerning the effects of federalFederal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct accurate in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Firm has not been engaged to such counsel's knowledge, perform legal services in connection with any transaction whereby the Company does not own would acquire an equity interest in any other corporation, partnership, joint venture, trust or other business entityentity other than those contemplated in the Offering;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus (and any amendment or supplement thereto, ) under the heading "Capitalization", and, to such counsel's knowledge, after due inquiry" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued authorized; all outstanding shares of Common Stock have been fully paid for and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or and of the Representative's WarrantWarrant Agreement, will be validly issued, issued fully paid and non-assessable and assessable. The Securities conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all . All corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; . The Representative's Securities constitute valid and binding obligations of the certificates representing Company to issue and sell, upon exercise thereof and payment therefor, the Securities are in due number and proper formtype of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Warrant Agreement and the Representative's Warrant RPO of the Securities to be sold by the Companyand Representative's Securities, as applicable, the Underwriters will acquire title to the Firm Securities, and the holders of Representative will acquire title to the Representative's WarrantSecurities, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, Shares; (B) the purchase by the Underwriters and the Representative of the Securities Shares from the Company, (C) Company;(C)the consummation by the Company of any of its obligations under this Agreement, Agreement or (D) resales of the Securities Shares held by Selling Shareholders in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is has become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, and to such counsel's knowledge, after due inquiry, knowledge no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or preventing the use of the preliminary prospectus or any part of any thereof has been issued and no proceedings proceeding for that purpose have has been instituted or are pending is pending, or is threatened or contemplated under the ActsAct;
(v) each counsel does not know of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and or to be filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copiesnot so described or filed; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate and fairly present in all material respects and fairly represent the information required to be shown by Form N-5presented therein; (C) to counsel's knowledge there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental governmental, legal or other proceeding (including, without limitation, limitation those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)Company, or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed. No Federal, (2) questions the validity of the capital stock of the Company state or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no local statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viivi) the Company has full legal right, corporate power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for thereincontemplated herein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by or on behalf of the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights generally and the application of general equitable principles in any action, legal or equitable, and except as rights to those provisions relating to indemnity or contribution may be limited by applicable lawas to which no opinion is expressed), and neither the . The Company's execution execution, delivery or delivery performance of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or Business will conflict with or results or will not result in any breach or violation of any of the terms or provisions of, or conflicts or will conflict with or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, ; (B) any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders shareholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or ; (Cc) any Federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflictsor (D) have any Material Adverse Effect on any permit, breachescertification, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consentregistration, approval, authorization consent, license or order, franchise necessary for the Company to own or lease and no filing with, operate any court, regulatory body, government agency of its properties and to conduct its Business or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance ability of the Securities pursuant Company to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated herebymake use thereof;
(ixvii) the Firm has not been engaged to such counsel's knowledgeprovide legal services with respect to, nor does the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach Firm have any knowledge of, any breach of or in a default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholdersshareholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an any obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of the Company is subject or affected. The Company is not in violation of any term or provision of its certificate of incorporation or by-laws or, to counsel's knowledge in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(viii) the statements in the Prospectus under the headings "THE COMPANY", "BUSINESS", "MANAGEMENT," "PRINCIPAL STOCKHOLDERS, "SELLING SECURITY HOLDERS", "CERTAIN TRANSACTIONS", "DESCRIPTION OF SECURITIES", and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, except for any of the foregoing opined upon to the underwriters by counsel to the Company iother than Blau, Kramer, Wactlar & Lieberman, P.C.; are ▇▇rrect in all material respects;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder Underwriter to purchase and pay for the Shares shall be subject subject, in the Underwriter's sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Securityholder contained herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's and the Selling Securityholder's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, Selling Securityholder of its covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on prior to the date of this Agreement or such later date hereof and time as all filings required by Rules 424(b), 430A and 462 under the Act shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, have been timely made; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Underwriter, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filingStatement, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsProspectus or otherwise).
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriter shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇yan opinion, dated the Closing Date, addressed to of Fulbright & Jawo▇▇▇▇ ▇.▇.P., counsel for the Underwriters and in form and substance satisfactory to Underwriters' CounselCompany, to the effect that:
(i) the Company (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction, the state of Delaware and is qualified to do business in the State of Texas;
(Bii) the Company has authorized capital stock as set forth in the Prospectus and the description of the capital stock of the Company conforms in all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary material respects to own or lease its properties and conduct its business as described the description thereof contained in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company Shares have been duly authorized and validly issued and are fully paid and non-assessablenonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security outstanding shares of capital stock of the Company contained in the certificate of incorporation of the Company or, to are entitled as such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of to subscribe for any stockholder contained in the certificate of incorporation of the Company or, to such counselShares under the Delaware General Corporation Law or the Company's knowledge, agreement, document Certificate of Incorporation or instrument, by-laws;
(iii) the execution and delivery of this Agreement have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws by all necessary corporate action of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue Company and sale of the Securities this Agreement has been duly executed and validly taken; and delivered by the certificates representing Company;
(iv) the Securities are in due and proper form. Upon compliance by the issuance and delivery pursuant to Company with the provisions of this Agreement and the Representative's Warrant consummation of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, other transactions herein contemplated do not conflict with or other restriction result in a breach or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company violation of any of its obligations under this Agreement, or (D) resales the terms and provisions of the Securities charter documents or by-laws of the Company or the Credit Agreement; and
(v) the Registration Statement and the Prospectus (excluding the financial statements and other financial or statistical information contained or incorporated by reference therein and any information furnished by the Underwriter or the Selling Securityholder, as to which such counsel need express no opinion) comply on their face as to form in connection all material respects with the distribution contemplated hereby.
(iv) applicable requirements of the Act and the respective rules and regulations of the Commission thereunder and, to the knowledge of such counsel, the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is threatened, pending or contemplated. Such counsel shall also state that it has participated in telephone calls and exchanges of information and comments with officers and other representatives of the Company, the Selling Securityholder and representatives of the independent public accountants of the Company, with respect to the contents of the Registration Statement and the Prospectus. Although such counsel need not pass upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and need not make any representation that it has independently verified the accuracy, completeness or fairness of such statements, such counsel shall state that on the basis of the foregoing and the information disclosed to it (i) no facts came to its attention that lead it to believe that the Registration Statement, as of the time it was declared effective under the Act, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading (it being understood that such counsel need not express any view with respect to the financial statements, including the notes and schedules thereto and the auditor's report thereon, or any other information of a financial or accounting nature set forth or referred to in the Registration Statement or any document incorporated therein by reference or any exhibits thereto), and (ii) no facts have come to such counsel's attention that lead it to believe that the Prospectus, as of the time it was filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any view with respect to the financial statements including the notes and schedules thereto and the auditor's report thereon, or any other information of a financial or accounting nature set forth or referred to in the Prospectus or any document incorporated therein by reference). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Registration Statement and the Prospectus in this Section 9(b) shall include any amendment or supplement thereto at the date of such opinion.
(c) The Selling Securityholder shall have furnished to the Underwriter the opinion of Fulbright & Jawo▇▇▇▇ ▇.▇.P., counsel for the Selling Securityholder, dated the Closing Date, to the effect that:
(a) Upon the payment to the Selling Securityholder for the Shares in accordance with this Agreement, the Underwriter will be the entitlement holders of the security entitlements credited on the date hereof in respect of such shares to any of the accounts maintained by [insert name of the securities intermediary] on behalf of the Underwriter (as the terms "entitlement holder" and "securities entitlement" are defined under Article 8 of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC").
(b) The Underwriter will acquire their respective interests in such security entitlements free of any "adverse claim" (as that term is defined under Section 8-102 of the NYUCC), assuming that each of the underwriters does not have notice of any adverse claims to the Shares at the time they take control of such security entitlements (pursuant to Section 8-106 of the NYUCC).
(ii) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Selling Securityholder and this Agreement has been duly executed and delivered by the Selling Securityholder; and
(iii) The sale of the Shares to the Underwriter by the Selling Securityholder pursuant to this Agreement, the compliance by the Selling Securityholder with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not conflict with or result in a breach or violation of any of the terms and provisions of the partnership agreement or other governing documents of the Selling Securityholder. In rendering such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Registration Statement and the Prospectus in this Section 9(c) shall include any amendment or supplement thereto at the date of such opinion.
(d) The Underwriter shall have received an opinion, dated the Closing Date, of Vins▇▇ & ▇lki▇▇ ▇.▇.P., counsel for the Underwriter, with respect to the sale of the Shares and such other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Underwriter shall have received from Ernst & Young, LLP a letter or letters dated the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that:
(i) they are independent accountants with respect to the Company and its consolidated subsidiaries within the meaning of the Act, and the Exchange Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements and schedules examined by them and included in the Registration Statement and the Prospectus comply in form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the related published rules and regulations thereunder;
(iii) on the basis of a reading of the latest available interim unaudited consolidated condensed financial statements of the Company and its consolidated subsidiaries, carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in this Section 9(e)(iii), a reading of the minute books of the stockholders, the board of directors and any committees thereof of the Company and each of its consolidated subsidiaries, and inquiries of certain officials of the Company and its consolidated subsidiaries who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the related published rules and regulations thereunder, or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; and
(B) at a specific date not more than five business days prior to the date of such letter, there were any changes in the capital stock or long-term debt of the Company and its consolidated subsidiaries or any decreases in net current assets or stockholders' equity of the Company and its consolidated subsidiaries, in each case compared with amounts shown on the September 30, 2000, unaudited condensed consolidated balance sheet incorporated by reference in the Registration Statement and the Prospectus; or for the period from October 1, 2000, to such specified date, there were any decreases, as compared with the corresponding period in the preceding year and with a period of corresponding length ending on September 30, 2000, in net revenues, net income before income taxes or total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes, decreases or increases set forth in such letter. In the event that the letter referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Underwriter that (A) such letter shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Underwriter deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Underwriter, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, as amended as of the date hereof. References to the Registration Statement and the Prospectus in this Section 9(e) with respect to the letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(f) The Underwriter shall have received a certificate, dated the Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; the Registration Statement, as amended as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto has been issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectusor, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counselthe Company's knowledge, (A) there are no agreements, contracts or other documents required contemplated by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits Commission; and
(iii) subsequent to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed respective dates as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company information is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained given in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, neither the Company nor any of its Subsidiaries has sustained any loss that is material to the Company and its Subsidiaries taken as a whole or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not in breach ofcovered by insurance, or in default under, from any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement labor dispute or any other agreement legal or instrument evidencing an obligation for borrowed moneygovernmental proceeding, and there has not been any material adverse change, or any other agreement development involving a prospective material adverse change, in the condition (financial or instrument to which the Company is a party otherwise), management, business prospects, net worth or by which any results of operations of the Company and its Subsidiaries taken as a whole, except in each case as described in or contemplated by the Prospectus. Such officers' certificate may be bound or to which the property or assets (tangible or intangible) of any state that it is being delivered by each officer on behalf of the Company and no personal liability shall attach to the individual executing the certificate absent fraudulent misrepresentation.
(g) The Underwriter shall have received a certificate, dated the Closing Date, of the Selling Securityholder to the effect that the representations and warranties of the Selling Securityholder in this Agreement are true and correct as if made on and as of the Closing Date.
(h) The Underwriter shall have received such documentation as may be necessary to deliver the Shares to the Underwriter in a form satisfactory to the Underwriter.
(i) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Underwriter and counsel for the Underwriter. The Company shall furnish to the Underwriter such conformed copies of such opinions, certificates, letters and documents in such quantities as the Underwriter and counsel for the Underwriter shall reasonably request.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the ------------------------------------------- Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form (including the Statement of Eligibility and substance satisfactory to Qualification of the Representative and Underwriter's CounselTrustee on Form T-1 (the "Form T-1"), shall have become effective not later than 12:00 p.m., 5:30 p.m. New York time, time on the date of this Agreement hereof or at such later time and date and time as shall be consented to in writing may have been approved by the Representative, and, at Closing Date Underwriters and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement (including the Form T-1) shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or contemplated the Underwriters, threatened by the Commission Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any supplement or amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, material or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, Prospectus or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, material or omits to state a fact which, in the Representative's opinion, Underwriters' reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No order suspending the sale of the Securities in any jurisdiction shall have been issued on either the Closing Date or the relevant Option Closing Date, if any, and no proceedings for that purpose shall have been instituted or shall, to the knowledge of the Underwriters, be threatened.
(c) On or prior to the Closing Date and each Option Closing Date, if any, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the SecuritiesNotes, the Underlying Stock, the Registration Statement, the Prospectus Statement and other related matters as the Representatives Underwriters may request and Underwriters' Counsel shall have received such papers and information as they request to enable them it to pass upon such matters.
(d) At On the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Gardere & Veith, counsel to the C▇▇▇▇▇y, L.L.P., counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters' Counsel, Counsel to the effect that:
(i) the Company (A) the Company and each of the Significant Subsidiaries has been duly organized incorporated and is validly existing as a corporation in corporate and tax good standing under the laws of its jurisdictionjurisdiction of incorporation, and (B) the Company and each of the Significant Subsidiaries is duly qualified to do business and in good standing as a foreign corporation in the states designated on Annex I and (C) the Company and each of the Significant Subsidiaries has all requisite corporate power and authority, authority and has obtained any authority and all necessary governmental authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingexcept where the failure to so have any such authorizations, without limitationapprovals, those having jurisdiction over environmental orders, licenses, certificates, franchises or similar matters)permits, materially necessary individually or in the aggregate, would not have a Material Adverse Effect) to own or lease its their respective properties and to conduct its business their respective businesses as now being conducted as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.so described;
(ii) to such counselthe Company's knowledgeauthorized capital stock as of March 26, 1999 is as set forth under the Company does not own an equity interest heading "Capitalization" in any other corporation, partnership, joint venture, trust or other business entitythe Prospectus;
(iii) the Company has a duly authorizedowns of record, issued directly or indirectly, all the outstanding shares of capital stock of each of the Subsidiaries free and outstanding capitalization clear of any liens, charges, claims, pledges, security interests, defects or other encumbrances;
(iv) except for the Indenture and this Agreement and as set forth disclosed in the Prospectus, and any amendment or supplement thereto, under "Capitalization", andRegistration Statement, to such counsel's knowledge, after due inquiry, neither the Company is not a nor any of the Subsidiaries are party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and or any of its Subsidiaries or the Knight/Trimark Common Stock owned by the Company.
(v) all outstanding shares of capital stock of the Company are authorized, validly issued and are fully issued, fully-paid and non-assessable; the holders thereof have no rights of rescission with respect theretoto such counsel's knowledge, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the any preemptive rights of any holders of any security stockholders of the Company contained or similar contractual rights granted by the Company or applicable securities laws, and were not issued and sold other than in compliance with applicable federal securities laws; the certificate holders of incorporation outstanding securities of the Company orare not entitled to any pre-emptive rights with respect to the Notes or the Knight/Trimark Common Stock pursuant to the Company's Certificate of Incorporation or By-laws, as amended, or any other instrument known to such counsel; all of the outstanding shares of capital stock of each of the Subsidiaries are authorized and, assuming receipt by each such Subsidiary of full payment therefor, were validly issued, and such counsel has no knowledge that such shares are not fully paid and nonassessable;
(vi) the Company's issuance of the Notes, and performance of its obligations thereunder, have been duly authorized by the Company; when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment of the agreed consideration therefor in accordance with the terms of this Agreement, the Notes will be validly issued; the Notes and the Indenture conform in all material respects to the description thereof in the Registration Statement and the Prospectus;
(vii) the form of the Notes is in the form required by the Indenture; when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment of the agreed consideration therefor in accordance with the terms of this Agreement, the Notes will be duly authorized and binding obligations of the Company enforceable against the Company in accordance with their terms; upon issuance and delivery of the certificates representing the Notes to the Underwriters pursuant to this Agreement and the Indenture, assuming that the Underwriters take delivery of said certificates representing the Notes in good faith and without notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York), the Underwriters will acquire good title thereto free and clear of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York);
(viii) the Registration Statement (including the Form T-1 attached as an Exhibit thereto) has become effective under the Securities Act; a Prospectus containing the information permitted to be omitted under Rule 430A has been filed in accordance with Rule 424(b); to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no or the qualification of the Trustee is in effect or proceedings for that purpose have been instituted or are pending or threatened before or contemplated under by the ActsCommission;
(vix) each the Registration Statement and the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein or omitted therefrom and the Form T-1, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Preliminary ProspectusSecurities Act, the Registration StatementTrust Indenture Act, and the Prospectus rules and any amendments or supplements thereto regulations under the Securities Act and the Trust Indenture Act; the documents incorporated by reference into the Registration Statement (other than except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements Exchange Act and the rules and regulations of the Acts Commission thereunder;
(x) the Indenture has been qualified under the Trust Indenture Act;
(xi) the statements in the Registration Statement and Prospectus, insofar as they refer to statements of law or legal conclusions, and the Rules statements in the Registration Statement and Regulations.
(vi) Prospectus, insofar as they are descriptions of this Agreement, the Indenture and the Notes, are accurate in all material respects in the context in which they were given and present fairly the subject matter thereof; to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described statements in the Registration Statement and the Prospectus and filed Prospectus, insofar as exhibits to the Registration Statement they are descriptions of other than those described in the Registration Statement (agreements or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other legal documents to which the Company or any of its Subsidiaries is a party or by which it is any of them or their respective properties are bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and present fairly represent the information required subject matter thereof; to be shown by Form N-5; (C) such counsel's knowledge, there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental suit or other proceeding (including, without limitation, those having jurisdiction over environmental against the Company or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)any of its Subsidiaries, or involving the properties or business of the Company or any of its Subsidiaries, which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2i) questions the validity of the capital stock of the Company or any of the Subsidiaries or of this Agreement or Agreement, the Representative's Warrant Indenture or of any action taken or to be taken by the Company pursuant to or any of its Subsidiaries in connection with any of the foregoing; foregoing or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (Eii) except as disclosed in the ProspectusRegistration Statement, there is no action, suit or proceeding pending, or threatened, against or affecting could have a Material Adverse Effect.
(xii) the Company before any court or arbitrator or governmental bodyhas all requisite corporate power and authority to execute, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the conditiondeliver, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to and perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Indenture and to consummate the transactions provided for contemplated herein and therein; the Company has duly authorized the execution and delivery of, and performance by the Company of its obligations under, this Agreement and the Representative's Warrant each Indenture; the Company has been duly authorized, executed and delivered by the Company. This this Agreement and the Representative Warrant, assuming due authorization, execution Indenture;
(xiii) this Agreement and delivery by the Indenture each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes constitute a legal, valid and binding agreement obligation of the Company Company, enforceable against the Company in accordance with its terms (except as such enforceability may be limited terms; the execution and delivery by applicable bankruptcythe Company of, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statementobligations under, this Agreement, the Prospectus, Indenture and any amendments or supplements thereto, conflicts with or will conflict with or results or will the Notes do not result in any breach or violation of any applicable statute, rule or regulation;
(xiv) the execution and delivery by the Company of this Agreement, the Indenture and the Notes the performance by the Company hereunder and thereunder the compliance by the Company with the provisions hereof and thereof and the consummation of the terms transactions contemplated hereby and thereby do not and will not conflict with or provisions result in any breach or violation of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect interest or other restriction or equity of any kind whatsoever upon, encumbrance upon any property or assets (tangible or intangible) of the Company or any of the Subsidiaries pursuant to the terms of, of (A) the certificate or articles of incorporation or by-laws of the Company, Company or any of the Subsidiaries to (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument listed as an exhibit to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, the Incorporated Documents or (C) any statute, judgment, decree, order, rule or regulation or, to the best of such counsel's knowledge, any judgment, decree or order applicable to the Company or any of the Subsidiaries of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their respective activities or properties. Such counsel need express no opinion in this paragraph (xiv) as to state securities or blue sky laws or with respect to matters of fact relating to compliance with any financial covenants, except for conflicts, breaches, violations, defaults, creations ratios or impositions which do not and would not have a material adverse effect on tests or any aspect of the financial condition or results of operations of the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ixxv) neither the Company nor any of the Subsidiaries is in violation of its respective certificate or articles of incorporation or by-laws; to such counsel's knowledge, neither the properties and business Company nor any of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company Subsidiaries is not in breach of, or in default underwith respect to, any term or provision provisions of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument of which such counsel has knowledge to which the Company or any of the Subsidiaries is a party or by which any of the Company them is or may be bound or to which the property any of their respective properties or assets (tangible is or intangible) of may be subject, except for such breaches or defaults which in the aggregate would not have a Material Adverse Effect; and to such counsel's knowledge, neither the Company nor any of the Subsidiaries is in violation of any law, rule or regulation applicable to it or any judgment, decree or order of any judicial or governmental authority of which such counsel has knowledge by which the Company ior any of the Subsidiaries may be bound or to which any of their respective properties or assets is or may be subject, except for such violations which in the aggregate would not have a Material Adverse Effect;
(xvi) neither the issuance of the Notes nor the performance by the Company of this Agreement, the Indenture and the Notes and the transactions contemplated hereby and thereby requires any consent, approval, authorization or other order of or registration or filing with, any court, regulatory body or government agency or body, other than such as already has been made or obtained and such as may be required under state securities or Blue Sky laws or the rules of the NASD;
(xvii) the statements in the Prospectus under the captions "Business-Legal Proceedings," and "Certain United States Federal Income Tax Considerations" insofar as such statements constitute matters of law, summaries of legal matters, documents or proceedings referred to therein, or legal conclusions, have been reviewed by such firm and are correct in all material respects;
(xviii) the statements set forth in the Prospectus under the caption "Description of the DARTS" accurately summarize in all material respects the terms of the Notes and the Indenture;
(xix) neither the execution and delivery by the Company of, nor the performance of its obligations under, this Agreement and the Indenture, nor the sale, issuance, execution or delivery by the Company of the Notes will violate Regulations G, T, U or X of the Federal Reserve Board; and
(xx) the Company is not an "investment company," a company controlled by, under common control with, or controlling an "investment company" or a "promoter" or "principal underwriter" for, an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may rely: (A) as to matters inv
Appears in 1 contract
Sources: Underwriting Agreement (Southwest Securities Group Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & VeithWaring Cox, PLC ("Waring Cox"), counsel to the CCompany, da▇▇▇ the Closing Da▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Securities," and to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Warrant Agreement, the Representative's Warrant Agreement, and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessablenonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder hereunder, under the Warrant Agreement, and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement The Representative's Warrants and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters Warrants constitute valid and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its binding obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal rightissue and sell, power upon exercise thereof and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrantpayment therefor, the receipt number and type of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement securities of the Company enforceable against the Company in accordance with its terms called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement of the Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the Representative, respectively, good and marketable title to the Securities free and clear of all liens and other encumbrances;
(iv) the Registration Statement is effective under the Act, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and neither no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the best of such counsel's knowledge, threatened or contemplated under the Act;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Regulations. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and the Representative and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto);
(vi) to the best of such counsel's knowledge after reasonable investigation, (A) there are no agreements, contracts or other documents required by the Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound are accurate in all material respects and fairly represent the information required to be shown by Form SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against the Company which (x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (y) questions the validity of the capital stock of the Company or this Agreement, the Warrant Agreement, or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) there is no action, suit or proceeding pending or threatened against the Company before any court or arbitrator or governmental body, agency or official in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, business, affairs, stockholders' equity, operations, properties, business or results of operations of the Company, which could adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Warrant Agreement, or the Representative's Warrant Agreement, or which in any manner draws into question the validity or enforceability of this Agreement, the Warrant Agreement or the Representative's Warrant Agreement;
(vii) the Company has the corporate power and authority to enter into each of this Agreement, the Warrant Agreement, and the Representative's Warrant Agreement and to consummate the transactions provided for therein; and each of this Agreement, the Warrant Agreement, and the Representative's Warrant Agreement has been duly authorized, executed and delivered by the Company. Each of this Agreement, the Warrant Agreement, and the Representative's Warrant Agreement, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and none of the Company's execution execution, delivery or delivery performance of this Agreement Agreement, the Warrant Agreement, and of the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its the consummation by the Company of the transactions contemplated hereinherein or therein, or the conduct of its the Company's business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be renderedrendered or under federal securities laws, as to which no opinion need be rendered pursuant to this subsection (viii), the Rules of the NASD and the NASDAQ SmallCap Market) is required in connection with the issuance of the Securities pursuant to the Prospectus Prospectus, and the Registration Statement, the performance of this Agreement Agreement, the Warrant Agreement, and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to the best of such counsel's knowledgeknowledge after reasonable investigation, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to the best knowledge of such counsel's knowledge, and except as disclosed in Registration Statement and the Prospectus, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be is bound or to which the property or assets (tangible or intangible) of any of the Company iis subject; and the Company is not in violation of any term or provision of its articles of incorporation or by-laws, as amended, and to the best of such counsel's knowl
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company Trust and the Advisers contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company Trust and the Advisers made pursuant to the provisions hereof; and , to the performance by the Company on Trust and as the Advisers of the Closing Date and each Option Closing Date, if any, of its their covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Trust has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 497 under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge, after due inquiry, of the Trust or the Representatives, shall be pending or contemplated by the Commission Commission; and the Trust shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall have received an opinion, dated the Firm Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Trust and the Advisers, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters substantially to the effect set forth in EXHIBIT A hereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Representatives shall have received an opinion, dated the Firm Closing Date, of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, with respect to the issuance and sale of the Firm Securities, the Registration Statement and the Prospectus, and such other related matters as the Representatives may reasonably require, and the Trust shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from Deloitte & Touche LLP a letter or letters dated, respectively, the date hereof and the Firm Closing Date, in form and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the Trust within the meaning of the Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the Statement of Assets and Liabilities audited by them and included in the Registration Statement and the Prospectus comply in form in all - 15 - material respects with the applicable accounting requirements of the Act and the related published rules and regulations;
(iii) on the basis of carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (iii), a reading of the minute books of the shareholders, the board of directors and any committees thereof of the Trust, and inquiries of certain officials of the Trust who have advised responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that at a specific date not more than five business days prior to the Company date of such letter, there were any changes in the capital stock or long-term debt of the Trust or any decreases in not current assets or stockholders' equity of the Trust, in each case compared with amounts shown on the Statement of Assets and Liabilities included in the Registration Statement; and
(iv) they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are derived from the general accounting records of the Trust and are included in the Registration Statement and the Prospectus under the captions "Summary of Trust Expenses," and agree with the Trust's calculation of such data as set forth in the Prospectus. In the event that the letters referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Trust as to the significance thereof, unless the Representatives deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Securities as contemplated by the Registration Statement, or as amended as of the date hereof. References to the Registration Statement and the Prospectus in this paragraph (d) with respect to either letter referred to above shall include any amendment theretoor supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, contains an dated the Firm Closing Date, of the principal executive officer and the principal financial or accounting officer of the Trust to the effect that:
(i) the representations and warranties of the Trust in this Agreement are true and correct as if made on and as of the Firm Closing Date; the Registration Statement, as amended as of the Firm Closing Date, does not include any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that and the Prospectus, as amended or supplemented as of the Firm Closing Date, does not include any supplement thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a any material fact which, necessary in the Representative's opinion, is material and is required to be stated therein or is necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On ; and the Trust has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or threatened or, to the best of the Trust's knowledge, after due inquiry, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Trust has not sustained any material loss or interference with its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), management, business prospects, net worth or results of operations of the Trust, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received a certificate, dated the Firm Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, principal executive officer and the validity principal financial or accounting officer of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, BAI to the effect that:
(i) the Company (A) has been duly organized representations and is validly existing warranties of BAI in this Agreement are true and correct as a corporation in good standing under if made on and as of the laws of its jurisdictionFirm Closing Date, and (B) has all requisite corporate power the description of BAI and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described included in the Prospectus; , as amended or supplemented as of the Company is Firm Closing Date, does not qualified as a foreign corporation in include any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have untrue statement or a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation fact or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a any material fact necessary in order to make the statements contained therein not misleading therein, in the light of the circumstances in under which they were made., not misleading;
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any amendment thereto has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectusor, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counselBAI's knowledge, (A) there after due inquiry, are no agreements, contracts or other documents required contemplated by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits Commission; and
(iii) subsequent to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed respective dates as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company information is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained given in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is BAI has not in breach ofsustained any material loss or interference with its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or in default under, from any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement labor dispute or any other agreement legal or instrument evidencing an obligation for borrowed moneygovernmental proceeding, and there has not been any material adverse change, or any other agreement development involving a prospective material adverse change, in the condition (financial or instrument to which otherwise), management, business prospects, net worth or results of operations of BAI, except in each case as described in or contemplated by the Company is Prospectus (exclusive of any amendment or supplement thereto).
(g) The Representatives shall have received a party or by which any certificate, dated the Firm Closing Date, of the Company may be bound principal executive officer and the principal financial or accounting officer of BFM to the effect that:
(i) the representations and warranties of BFM in this Agreement are true and correct as if made on and as of the Firm Closing Date, and the description of BFM and its business included in the Prospectus, as amended or supplemented as of the Firm Closing Date, does not include any untrue statement or a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ii) subsequent to the property respective dates as of which information is given in the Registration Statement and the Prospectus, BFM has not sustained any material loss or assets interference with its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition (tangible financial or intangible) otherwise), management, business prospects, net worth or results of operations of BFM, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
(h) On or before the Firm Closing Date, the Representatives and counsel for the Underwriters shall have received such further certificates, documents or other information as they may have reasonably requested from the Trust and any Adviser.
(i) Prior to the commencement of the Company ioffering of the Securities, the Securities shall have been approved for listing on the NYSE, subject to official notice of issuance. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representatives and counsel for the Underwriters. The Trust shall furnish to the Representatives such conformed copies of such opinions, certificates, letters and documents in such quantities as the Representatives and counsel for the Underwriters shall reasonably request. The respective obligations of the several Underwriters to purchase and pay for any Option Securities shall be subject, in their discretion, to each of the foregoing conditions to purchase the Firm Securities, except that all references to the Firm Securities and the Firm Closing Date shall be deemed to refer to such Option Securities and the related Option Closing Date, respectively.
Appears in 1 contract
Sources: Underwriting Agreement (Blackrock Preferred Opportunity Trust)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company and the Parent herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or each Option Closing Date, if any, of the statements of the officers of the Company and the Parent made pursuant to the provisions hereof; and the performance by each of the Company and the Parent on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Preferred Shares, the Common Shares and the Redeemable Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence reasonably satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Greenberg, Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & Veith, counsel to the C▇▇▇▇▇y▇▇, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledgeand, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION", and, to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement, the Warrant Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Warrant Agreement and the Representative's Warrant Agreement are not and will not not, to the knowledge of such counsel, be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants and the Redeemable Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement of the Firm Securities and the Option Securities and the Representative's Warrant of the Securities Warrants to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company, and the purchase by the Representative of the Representative's Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the Representative's Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement, the Warrant Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Warrant Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Warrant Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement, the Warrant Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for therein; and each of this Agreement, the Warrant Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Warrant Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement, the Warrant Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Firm Securities and the Option Securities pursuant to the Prospectus and the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement, the Warrant Agreement and the transactions contemplated hereby;
(ix) to such counselRepresentative's knowledgeWarrant Agreement, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company itransactions contemplated
Appears in 1 contract
Sources: Underwriting Agreement (Commodore Separation Technologies Inc)
Conditions of the Underwriters’ Obligations. The obligations obligation of each Underwriter to purchase and pay for the Underwriters Offered Shares that it has agreed to purchase hereunder shall be on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on any Option Closing Date, is subject at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy of the respective representations and warranties of the Company herein as and of the Selling Stockholder set forth herein, to the performance by the Company and by the Selling Stockholder of their respective covenants and obligations hereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 5:30 p.m., Philadelphia time, on the date hereof and of this Agreement, or at such later time or on such later date as the Representatives may agree to in writing; if required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Closing Date Regulations within the applicable time period prescribed for such filing by the Regulations and each Option Closing Date, if any, as if they had been made in accordance with subsection (a) of Section 5 hereof; on and as of or prior to the Closing Date or each any Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order or other order preventing or suspending the effectiveness of the Registration Statement or the sale of any of the Shares shall have been issued under the Act or any state securities law and no proceedings for that purpose shall have been instituted initiated or shall be pending or, to the Representatives' knowledge or the knowledge of the Company, shall be contemplated by the Commission SEC or by any authority in any jurisdiction designated by the Representatives pursuant to subsection (f) of Section 5 hereof and any request on the part of the Commission SEC for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted counsel to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsUnderwriters.
(b) The Representative shall not have advised All corporate proceedings and other matters incident to the Company that authorization, form and validity of this Agreement, the Shares and the form of the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material Statement and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretoand all other legal matters relating to this Agreement and the transactions contemplated hereby, contains an untrue statement of fact which, shall be satisfactory in the Representative's opinion, is material, or omits all respects to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior counsel to the Closing Date, Underwriters; the Representative Company shall have received from Underwriters' Counsel, furnished to such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers counsel all documents and information as that they may reasonably request to enable them to pass upon such matters; and the Representatives shall have received from the Underwriters' counsel, Duane, Morris & Heckscher LLP, a favorable opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as the Representatives of the several Underwriters with respect to the due authorization, execution and delivery of this Agreement, that the issuance and sale of the Shares have been duly authorized by the Company and the Selling Stockholder, that when the Offered Shares have been duly delivered against payment therefor as contemplated by this Agreement, they will be validly issued, fully paid and nonassessable and that the Registration Statement has become effective under the Act.
(c) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(d) At Closing Date, the Underwriters The Representatives shall have received copies of the favorable opinion lock-up agreements described in subsection (xii) of Stursberg & Veith, counsel Section 5(a) and subsection (i) of Section 5(b) signed by those persons set forth on Schedule II annexed hereto.
(e) The Representatives shall have received at or prior to the C▇▇▇▇▇yClosing Date from the Underwriters' counsel a memorandum or summary, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' the Representatives, with respect to the qualification for offering and sale by the Underwriters of the Shares under the securities or Blue Sky laws of such jurisdictions designated by the Representatives pursuant to subsection (vii) of Section 5(a) hereof.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representatives a signed opinion of Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company ("Company Counsel"), dated as of each such date and addressed to the Representatives individually and as the Representatives of the several Underwriters to the effect that:
(i) The Company has been incorporated and is validly existing and in good standing under the laws of Delaware, with corporate power and authority to own or lease and operate its properties and to conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement. To the knowledge of Company Counsel, the Company does not own any stock or other equity interest in any corporation, partnership or other entity other than the Subsidiaries.
(Aii) Each Subsidiary (not including AEMI and Engineering) has been duly organized and incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction, jurisdiction of incorporation and (B) has all requisite the corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this This Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This .
(iv) The execution, delivery and performance of this Agreement by the Company does not and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto andwill not, with respect or without the giving of notice or the lapse of time, or both, (A) conflict with any terms or provisions of the Certificate of Incorporation or By-laws, as amended to the Representative's Warrant, the receipt date hereof of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement each of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments Subsidiaries (other than AEMI or supplements thereto, conflicts with or will conflict with or results or will Engineering); (B) result in any a breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, result in the termination or modification of or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect charge or other restriction or equity encumbrance upon any of any kind whatsoever upon, any property or assets (tangible or intangible) the material properties of the Company or any Subsidiary (other than AEMI or Engineering) pursuant to the terms ofto, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, material indenture, mortgage, deed of trust, voting trust agreementcontract, stockholders agreement, note, loan commitment or credit agreement or any other agreement or instrument instrument, known to Company Counsel, to which the Company or any Subsidiary (other than AEMI or Engineering) is a party or by which it is or may be bound or to which any of its the material properties or assets of the Company or any Subsidiary (tangible other than AEMI or intangibleEngineering) is bound or may be subject, or any indebtedness, subject or (C) violate any statute, judgment, decree, orderlaw, rule or regulation applicable to the Company or any Subsidiary known to Company Counsel, or violate any judgment, order or decree, known to Company Counsel, of any arbitratorgovernment or governmental agency, instrumentality or court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any Subsidiary (other than AEMI or Engineering) or any of its activities the material properties of the Company or properties, except for conflicts, breaches, violations, defaults, creations any Subsidiary (other than AEMI or impositions which do not and would not have a material adverse effect on the CompanyEngineering).
(viiiv) The Company has the authorized and outstanding capitalization as set forth in the Prospectus. To the knowledge of Company Counsel, there are no options or warrants for the purchase of, other outstanding rights to purchase, agreements or obligations to issue or agreements or other rights to convert or exchange any obligation or security into, capital stock of the Company or securities convertible into or exchangeable for capital stock of the Company, except as described in the Registration Statement or the Prospectus.
(vi) The authorized capital stock of the Company, including, without limitation, the outstanding Common Shares and the Shares being issued on the Closing Date and any Option Closing Date, conforms in all material respects with the descriptions thereof in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required descriptions conform in connection all material respects with the issuance of descriptions thereof set forth in the Securities pursuant instruments defining the same. The information in the Prospectus set forth under the captions "Summary," "Risk Factors," "Capitalization," "Dilution," "Management -Employment Agreements," "Management - 1997 Equity Incentive Plan," "Principal Stockholders" and "Shares Eligible for Future Sale" insofar as it relates to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained Employee Options is accurate in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iall material respects.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder shall be subject to purchase the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made Shares on and as of the Closing Date or each Option the Additional Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant are subject to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and their obligations hereunder and to the following further additional conditions:
(a) The the Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective (or if a post-effective amendment is required to be filed under the Securities Act, such post-effective amendment shall have become effective) not later than 12:00 p.m.5:00 P.M., New York City time, on the date of this Agreement or such later date hereof; and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission; the Prospectus shall have been instituted or shall be pending or contemplated filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Commission rules and any request on regulations under the part of the Commission Securities Act and in accordance with Section 3(a) hereof; and all requests for additional information shall have been complied with to the reasonable satisfaction of the Underwriters' Counsel. If ;
(b) the representations and warranties of the Company has elected to rely upon Rule 430A contained herein shall be true and correct on and as of the Rules Closing Date or the Additional Closing Date, as the case may be, as if made on and Regulations, the price as of the Shares and any price-related information previously omitted from Closing Date or the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to Additional Closing Date, as the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time periodcase may be, and prior to Closing Date the Company shall have provided evidence complied with all agreements and all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may be;
(c) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, consolidated financial position, results of operations, cash flows or stockholders’ equity of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in the Prospectus; and neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus;
(d) the Underwriters shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, a certificate signed by the Chief Financial Officer of the Company, to the effect set forth in paragraphs (a), (b) and (c) of this Section 4, and (with respect to the respective representations, warranties, agreements and conditions of the Company) to the further effect that there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries taken as a whole from that set forth or contemplated in the Registration Statement;
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Company, shall have furnished to the Underwriters their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative Underwriters, to the effect that:
(i) other than as set forth or contemplated in the Prospectus and insofar as matters of United States federal and New York state law are concerned, to the best of such timely filingcounsel’s knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened against or affecting the Company or any of its Subsidiaries or any of their respective properties or to which the Company or any of its Subsidiaries is or may be a party or to which any property of the Company or its Subsidiaries is or may be the subject which, if determined adversely to the Company or any of its Subsidiaries, could individually or in the aggregate have, or reasonably be expected to have, a post-material adverse effect on the financial position or results of operations of the Company and its Subsidiaries taken as a whole; and such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ii) to the extent governed by the laws of the State of New York, this Agreement has been duly executed and delivered by the Company;
(iii) under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section 11 of this Agreement, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Agreement or the transactions contemplated hereby, has validly and irrevocably waived any objection to the venue of a proceeding in any such court, and has validly and irrevocably appointed the Authorized Agent (as defined herein) as its authorized agent for the purpose described in Section 11 hereof; and service of process effected on such agent in the manner set forth in Section 11 hereof will be effective amendment providing to confer valid personal jurisdiction over the Company;
(iv) the statements in the Prospectus under “Management,” “Description of Capital Stock” and “Service of Process and Enforcement of Liabilities,” and in the Registration Statement in Items 6 and 7, insofar as such statements constitute a summary of the terms of legal matters, documents or proceedings referred to therein, and the statements in the Prospectus under “Tax Considerations —United States Federal Income Tax Considerations” insofar as such statements describe United States federal income tax law, fairly summarize the information shall called for with respect to such terms, legal matters, documents, proceedings or descriptions;
(v) the issue and sale of the Shares being delivered on the Closing Date or the Additional Closing Date, as the case may be, and the performance by the Company of its obligations under this Agreement and the consummation of the transactions contemplated herein will not result in a material breach of any of the terms or provisions of, or constitute a default under, any agreement or instrument, known to such counsel, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject;
(vi) no consent, approval, authorization, order, license, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications (A) as have been promptly filed obtained under the Securities Act and declared effective the Exchange Act and as may be required under state securities or Blue Sky laws in accordance connection with the requirements of Rule 497 purchase and distribution of the Rules Shares by the Underwriters or such as may be required by the NASD, and Regulations.(B) as may be required in connection with the acquisition of any vessel as contemplated in the Prospectus;
(bvii) the Company is not and, after giving effect to the offering and sale of the Shares, will not be an “investment company” or entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act; and
(viii) the Shares have been approved for quotation on the Nasdaq, subject to official notice of issuance. In rendering such opinions, such counsel may (A) limit its opinions to matters involving the application of laws of the United States and the State of New York and (B) rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The Representative opinion of such counsel for the Company shall state that the opinion of any such other counsel upon which they relied is in form satisfactory to such counsel and, in such counsel’s opinion, the Underwriters and they are justified in relying thereon. The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP described above shall be rendered to the Underwriters at the request of the Company and shall so state therein. Such counsel shall also state that, although they do not assume any responsibility for, and shall not be deemed to have advised independently ascertained or verified, the accuracy, completeness or fairness of the statements made in the Registration Statement or the Prospectus, except to the extent required by subsection (iv) of this Section 4(e), nothing has come to their attention in the course of participating with officers and Underwriters of the Company in the preparation of the Registration Statement that would lead them to believe that, insofar as relevant to the offering of the Shares, that (other than the financial statements and related schedules and other financial and other statistical data contained therein, as to which such counsel need make no statement) the Registration Statement, or as of its effective date, and the Prospectus, as of its date and as of the Closing Date, contained any amendment thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, as amended or any supplement theretosupplemented, if applicable, contains an any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, necessary in the Representative's opinion, is material and is required to be stated therein or is necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(cf) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ Islands counsel for the Company, shall have furnished to the Underwriters their written opinion, dated the Closing Date or the Additional Closing Date, addressed to as the Underwriters and case may be, in form and substance satisfactory to the Underwriters' Counsel, to the effect that:
(i) the Company (A) and each of its ▇▇▇▇▇▇▇▇ Islands Subsidiaries has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite the ▇▇▇▇▇▇▇▇ Islands with corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to such counsel's knowledge, the authorized capital stock of the Company does not own an equity interest conforms as to legal matters to the description thereof contained in any other corporation, partnership, joint venture, trust or other business entitythe Prospectus;
(iii) the Company has a duly authorized, all issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities shares of the Company have been duly authorized and are validly issued and are issued, fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, assessable and are not subject to personal liability under any preemptive rights;
(iv) the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities Shares to be issued and sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized andauthorized, and when issued, delivered to and paid for and delivered by the Underwriters in accordance with the terms hereof or the Representative's Warrantof this Agreement, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in issuance of the Prospectus; the holders thereof will Shares is not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Actspreemptive rights;
(v) each no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the Preliminary Prospectus▇▇▇▇▇▇▇▇ Islands, is required for the Registration Statement, execution and delivery by the Prospectus Company of this Agreement in order for it to be duly and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.validly authorized;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement ;
(vii) other than as set forth or contemplated in the Prospectus and insofar as matters of the Representative Warrant▇▇▇▇▇▇▇▇ Islands law are concerned, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrantbest of such counsel’s knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened in the receipt of an order ▇▇▇▇▇▇▇▇ Islands against or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of affecting the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments properties or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is or may be a party or by to which it any property of the Company is or may be bound the subject;
(viii) the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not result in any violation of the provisions of the Articles of Incorporation or to which any By-laws of its properties or assets (tangible or intangible) is or may be subject, the Company or any indebtedness, ▇▇▇▇▇▇▇▇ Islands statute or (C) any statute, judgment, decree, order, rule or regulation applicable known to the Company such counsel of any arbitrator, court, regulatory body court or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, in the ▇▇▇▇▇▇▇▇ Islands having jurisdiction over the Company or any of its activities properties;
(ix) the Company owns, possesses or propertieshas obtained all licenses, except for conflictspermits, breachescertificates, violationsconsents, defaultsorders, creations approvals and other authorizations from, and has made all declarations and filings with, all governmental authorities and all courts and other tribunals, in the ▇▇▇▇▇▇▇▇ Islands, necessary to own or impositions which do not lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof (other than such licenses, permits, certificates, consents, orders, approvals and other authorizations the failure to obtain would not in the aggregate have a material adverse effect on the Company.);
(viiix) except as described in the Prospectus, no consent, approval, authorization or authorization, order, and no filing withlicense, registration or qualification of or with any court, regulatory body, government court or governmental agency or other body is required in the ▇▇▇▇▇▇▇▇ Islands for the issue and sale of the Shares by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except (other than such A) which have been duly obtained and are in full force and effect or (B) as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance acquisition of the Securities pursuant to any vessel as contemplated in the Prospectus and the Registration Statement, registration of any such vessel under the performance law and Flag of this Agreement and the transactions contemplated hereby▇▇▇▇▇▇▇▇ Islands;
(ixxi) the statements in the Prospectus under “Dividend Policy”, “Description of Capital Stock” and “Certain ▇▇▇▇▇▇▇▇ Islands Company Considerations,” insofar as such statements constitute a summary of the terms of the capital stock of the Company, ▇▇▇▇▇▇▇▇ Islands legal matters, documents or proceedings referred to therein, and the statements in the Prospectus under “Tax Considerations—▇▇▇▇▇▇▇▇ Islands Tax Considerations,” insofar as such statements describe ▇▇▇▇▇▇▇▇ Islands tax law, fairly present in all material respects the information called for with respect to such counsel's knowledgeterms, the properties legal matters under ▇▇▇▇▇▇▇▇ Islands law, documents or proceedings;
(xii) no stamp or other issuance or transfer taxes or duties and business no capital gains, income, withholding or other taxes are payable by or on behalf of the Company conform Underwriters to the description ▇▇▇▇▇▇▇▇ Islands or to any political subdivision or taxing authority thereof contained or therein in connection with the sale and delivery by the Company of the Shares to or for the respective accounts of the Underwriters;
(xiii) insofar as matters of ▇▇▇▇▇▇▇▇ Islands law are concerned, the Registration Statement and the Prospectusfiling of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company; and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company;
(xxiv) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may to the choice of law provisions set forth in Section 11 hereof will be bound or to which recognized by the property or assets (tangible or intangible) courts of any the ▇▇▇▇▇▇▇▇ Islands; the Company can ▇▇▇ and be sued in its own name under the laws of the ▇▇▇▇▇▇▇▇ Islands; the irrevocable submission of the Company ito the exclusive jurisdiction of a New York Court, the waiver by the Company of any objection to the venue of a proceeding of a New York Court and the agreement of the Company that this Agreement shall be governed by and construed in accordance with the laws of the State of New York are legal, valid and binding; service of process effected in the manner set forth in Section 11 hereof will be effe
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company individually made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m.a.m., New York Minneapolis time, on the date on which the amendment to the Registration Statement originally filed with respect to the Shares or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Shares has been filed with the Commission, or such later date and time as shall be have been consented to in writing by the RepresentativeRepresentatives. If required, and, at Closing Date the Prospectus and each Option Closing Date, if any, no any amendment or supplement thereto shall have been filed in accordance with Rule 424(b) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the best knowledge of the Company or the Representatives shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Representatives and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall not have reasonably determined, with the advice of Underwriters' Counsel, and advised the Company that (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, misleading or that (ii) the Prospectus, or any amendment or supplement thereto, contains includes an untrue statement of a material fact whichor omits to such a material fact necessary in order to make the Statements therein, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Representatives shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives reasonably may request and request. Underwriters' Counsel shall have received from the Company such papers and information as they may reasonably request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or covenants of the Company contained herein.
(d) At Closing Date, the Underwriters The Representatives shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇▇▇▇ & ▇▇▇▇▇▇, P.L.L.P., counsel to the Company, an opinion, dated the Closing Date, addressed to the Underwriters Date and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the The Company (A) has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Minnesota. Each of the Company and Subsidiary is duly qualified to transact business as a foreign corporation and is in good standing in each United States jurisdiction in which its jurisdictionownership or leasing of any properties or the character or conduct of its operations requires such qualification except where failure to be so qualified or in good standing, individually or in the aggregate, would not result in a Material Adverse Effect.
(ii) Each of the Company and (B) Subsidiary has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental authority necessary or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary required to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to . To such counsel's actual knowledge, there being is no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, franchise or permit which, singly of or in from any governmental or regulatory official or body of any United States jurisdiction (including any official or body having jurisdiction over environmental or similar matters) necessary or required to own or lease the aggregate, if property or to conduct the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state Company and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and Subsidiary as described in the Prospectus. , except for such as have been obtained and are in full force and effect.
(iii) The SecuritiesCompany has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions provided for herein; and this Agreement has been duly authorized, executed and all other securities issued or issuable delivered by the Company. This Agreement, conform assuming due authorization, execution and delivery by the Underwriters, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in all material respects to all statements accordance with respect thereto contained its terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally and by judicial limitations on the right of specific performance, and except as the enforceability of the indemnification or contribution provisions hereof may be limited by federal or state securities laws. The Company's execution and delivery of this Agreement, its performance of its obligations hereunder, the consummation of the transactions contemplated hereby, and its conduct of its business as described in the Registration Statement Prospectus, do not and the Prospectus. All issued and outstanding securities will not conflict with or result in a breach or violation of any of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect theretoterms or provisions of, and are not subject to personal liability or constitute a default under the laws terms of the State Company's Restated Articles of New York Incorporation or Bylaws, each as currently in effect by reason of being such holders; and none of such securities were issued in violation amended to the date of the preemptive rights of opinion. The Company's execution and -20-
(iv) No consent, approval, authorization or order of, or filing with, any holders of any security of the Company contained in the certificate of incorporation of the Company governmental agency or body or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by court is required in connection with the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation issuance of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities Shares to be sold by the Company, the Underwriters and the holders of the RepresentativeCompany's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any performance of its obligations under this Agreementhereunder, the Offering or (D) resales the consummation of the Securities other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the bylaws and rules of the NASD in connection with the purchase and distribution contemplated herebyof the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect.
(ivv) Upon completion of the Offering, the authorized, issued and outstanding capital stock of the Company will be as set forth in, and will conform as to legal matters in all material respects to, the description thereof contained in, the Prospectus under the caption "Description of Capital Stock." Upon completion of the
(vi) The Registration Statement is has become effective under the Acts, and, if applicable, Act. Any required filing of all pricing information the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been timely made in accordance with the appropriate form under Rule 430A, and, to time period required thereby. To such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under threatened, by the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and RegulationsCommission.
(vivii) to At the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in time the Registration Statement and was declared effective by the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporatedCommission, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any amendment or supplement or amendment thereto (other than the financial statements, and notes thereto, the financial schedules, and the other financial and statistical data included in the
(viii) All descriptions in the Prospectus of statutes, regulations, and legal and governmental proceedings are correct in all material respects and include the information required to be shown with respect to such matters, except as to patent litigation and other patent matters as to which such counsel need express no opinion.
(ix) Such counsel have reviewed all contracts and other documents specifically referred to in the Registration Statement and the Prospectus (other than documents pertaining only to the Subsidiary), and the summaries of and other disclosures regarding such contracts and other documents included in the Registration Statement and the Prospectus are correct in all material respects and include the information required to be shown with respect thereto. To such counsel's knowledge, there are no contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that were not filed or disclosed as required.
(x) To such counsel's knowledge, no transaction of the Company or its Subsidiary would be considered "Certain Transactions" as defined in Item 404 of Regulation S-K of the Commission.
(xi) To such counsel's knowledge, upon the conclusion of the Offering, neither the Company nor Subsidiary was in breach of, or in default under, any material term, covenants or provision of any material license, contract, indenture, mortgage, installment sale agreement, lease, deed of trust, voting trust agreement, shareholders agreement, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrower money, or any other material agreement or instrument to which the Company or Subsidiary is a party or by which it is bound, including any document the Company or Subsidiary may be bound or to which any of their respective property
(xii) Except as disclosed in the Company is a party or by which it is boundProspectus, incorporated by reference into the Prospectus and any supplement or amendment theretoto such counsel's knowledge, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or or, to such counsel's knowledge, threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against Subsidiary (or any circumstances that may give rise to the same), or involving the properties or business of the Company which or Subsidiary, any action, suit, proceeding, inquiry, investigation, litigation or governmental proceeding (1including those having jurisdiction over environmental or similar matters), domestic or foreign, that (A) is required to be disclosed in the Registration Statement which Prospectus and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed, (2B) questions the validity of the capital stock of the Company or the validity or enforceability of this Agreement or Agreement, (C) questions the Representative's Warrant or validity of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; this Agreement, or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;.
(viixiii) To such counsel's knowledge, except as disclosed in the Company has full legal rightProspectus or to Underwriters' Counsel under Section l(a)(xii), power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order no claim is pending or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable threatened against the Company in accordance with its terms (except as such enforceability may be limited or Subsidiary or any of their respective officers to the effect that any Intellectual Property right that is owned by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating licensed to or affecting enforcement by the Company or Subsidiary or that the Company or Subsidiary otherwise has the right to use or is using is invalid or unenforceable by the Company or Subsidiary or infringes the right of creditors' rights and the application of equitable principles in a third party (including any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation former employer of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) employees of the Company pursuant or Subsidiary). In addition, such opinion shall contain a statement to the terms ofeffect that, (A) in the certificate course of incorporation the preparation by the Company and its counsel of the Registration Statement and the Prospectus, such counsel participated in certain meetings and telephone conferences with certain of the officers of the Company and the independent public accountants for the Company, at which the Registration Statement and the Prospectus were discussed and, in connection with the preparation thereof, such counsel reviewed certain documents furnished by the Company or by-laws otherwise in such counsel's possession. Between the date of effectiveness of the Registration Statement and the Closing Date, such counsel participated in certain additional meetings and/or telephone conferences with certain officers of the Company at which the contents of the Registration Statement and the Prospectus were discussed. Based on the information so obtained and after conducting an investigation which it considers reasonable, such counsel does not believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that as of the date hereof, the Prospectus or any amendment thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company provided that copies of any arbitrator, court, regulatory body such statements or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may certificates shall be required under Blue Sky laws, as delivered to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant Underwriters' Counsel contemporaneously. References to the Prospectus and Registration Statement in this Section 6(d) shall include any amendment or supplement thereto at the Registration Statementdate of such opinion.
(e) The Representatives shall have received from Merchant & ▇▇▇▇▇, patent counsel for the performance Company, an opinion, dated the Closing Date, to the effect that:
(i) the statements in the Prospectus under the captions "Business - Power Supplies - New High Density Switching Power Supplies," "Business - Design Engineering and Product Development" and "Business - Patents" have been reviewed by such counsel and are, to the best of this Agreement such counsel's knowledge, accurate in all material respects and fairly present the transactions contemplated herebypatent information disclosed therein;
(ixii) to the best of such counsel's knowledge, the properties Registration Statement and business the Prospectus do not contain any untrue statement of a material fact with respect to the patent position of the Company conform or Subsidiary, or omit to state any material fact relating to the description thereof patent position of the Company or Subsidiary which is required to be stated in the Registration Statement and the Prospectus or is necessary to make the statements therein not misleading; and
(iii) except as disclosed in the Prospectus, to the best of such counsel's knowledge, there is no claim, action or proceeding by any person pending or threatened which challenges the rights of the Company or Subsidiary with respect to such patents and licenses.
(f) The Representatives shall have received a certificate, dated the Closing Date, of the President and the Chief Financial Officer of the Company to the effect that each of such officers have carefully examined the Registration Statement, the Prospectus and this Agreement and, to the best of their knowledge, that:
(i) Each of the representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date, and the Company has complied in all material respects with all agreements and covenants and satisfied all conditions contained in this Agreement on its part to be performed or satisfied at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of such officer's knowledge, are contemplated or threatened by the Commission.
(iii) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus;
, (xA) to such counsel's knowledge, the Company is not in breach ofthere has been no material adverse change, or development involving a prospective material adverse change (including a change in default undermanagement or control of the Company), any term in the condition (financial or provision otherwise), business prospects, net worth or results of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any operations of the Company may be bound or to which Subsidiary, except in each case as described in or contemplated by the property or assets Prospectus (tangible or intangible) exclusive of any of amendment or supplement thereto); (B) neither the Company inor Subsidiary has entered into any transactions not in the ordinary course of business; (C) neither the Company nor Subsidiary has incurred any material l
Appears in 1 contract
Sources: Underwriting Agreement (Ault Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to (A) the continuing accuracy of the representations and warranties of the Company herein and the Selling Shareholder herein, as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they such representations and warranties had been made on and as of the Closing Date or each Date, (B) the continuing accuracy of the representations and warranties of the Company herein, as of the date hereof and as of any Option Closing Date, as if such representations and warranties had been made on and as of the case may be; Option Closing Date, (C) the accuracy on and as of the Closing Date or any Option Closing Date, if anyapplicable, of the statements of the officers of the Company and the Selling Shareholders made pursuant to the provisions hereof; and , (D) the performance by the Company and the Selling Shareholder on and as of the Closing Date and each any Option Closing Date, if anyapplicable, of its covenants and obligations hereunder hereunder, (E) the accuracy of the statements of the Company and the Selling Shareholder made in any certificates pursuant to the provisions hereof, and (F) the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's CounselStatement, including any Rule 462(b) Registration Statement, shall have become remain effective not later than 12:00 p.m., New York time, and on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, Closing Date and, at Closing Date and each if applicable, the Option Closing Date, if anyno stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Prospectus shall be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsthreatened.
(b) The Representative Underwriters shall not have advised the Company and the Selling Shareholder that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters’ reasonable opinion, after consultation with legal counsel, is material, material or omits to state a fact which, in the Representative's Underwriters’ opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Preliminary Prospectus, the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters’ opinion, is material, or omits to state a fact which, in the Representative's Underwriters’ opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' ’ Counsel, such an opinion or opinions and letter with respect to the organization of the CompanyRegistration Statement, the validity of the Securities, the Registration StatementPreliminary Prospectus, the Prospectus and other related matters as the Representatives Underwriters may request and reasonably request. Underwriters' ’ Counsel shall have received such papers and information as they request it requests to enable them it to pass upon such matters.
(d) At the Closing Date and, if applicable, the Option Closing Date, each of the Underwriters shall have received, the favorable opinions, in form and substance satisfactory to Underwriters’ Counsel, of each of the following:
(i) The Company shall furnish an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to the effect set forth in Exhibit B-I hereto and to such further effect as Underwriters’ Counsel may reasonably request;
(ii) The Company shall furnish an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Company with respect to matters of ▇▇▇▇▇▇▇▇ Islands law, to the effect set forth in Exhibit B-II hereto and to such further effect as Underwriters’ Counsel may reasonably request;
(iii) The Company shall furnish an opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, special counsel to the Company with respect to matters of Cypriot law, to the effect set forth in Exhibit B-III hereto and to such further effect as Underwriters’ Counsel may reasonably request;
(iv) The Company shall furnish an opinion of Potamitis, Iliadou, Vekris, Paparrigopoulos Law Partnership, special counsel to the Company with respect to matters of Greek law, to the effect set forth in Exhibit B-IV hereto and to such further effect as Underwriters’ Counsel may reasonably request;
(v) The Company shall furnish an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Company with respect to matters of Liberian law, to the effect set forth in Exhibit B-V hereto and to such further effect as Underwriters’ Counsel may reasonably request;
(vi) The Company shall furnish an opinion of ▇▇▇▇▇▇▇ & Associates, special counsel to the Company with respect to matters of Panama law, to the effect set forth in Exhibit B-VI hereto and to such further effect as Underwriters’ Counsel may reasonably request; and
(vii) The Selling Shareholder shall furnish on the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S. counsel for the Selling Shareholder, to the effect set forth in Exhibit B-VII hereto and to such further effect as Underwriters’ Counsel may reasonably request.
(e) At any Option Closing Date, the Underwriters shall have received the favorable opinion opinions of Stursberg & Veith, counsel to the C▇▇▇▇▇yfirms described in Section 6(d)(i)-(vi), dated the such Option Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' ’ Counsel, confirming, as of such Option Closing Date, the statements made by such counsel in its opinion dated the Closing Date.
(f) Prior to each of the Closing Date and any Option Closing Date, other than as set forth in the Registration Statement, the Preliminary Prospectus or the Prospectus, (i) there shall have been no adverse change nor development involving a prospective adverse change in the condition, financial or otherwise, prospects, stockholders’ equity or the business activities of the Company and any of its Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries, from the latest date as of which the financial condition of the Company and its Subsidiaries, taken as a whole, is set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus which is adverse to the Company and its Subsidiaries, taken as a whole; (iii) neither the Company or any of its Subsidiaries, shall be in default under any provision of any instrument relating to any outstanding indebtedness; (iv) since the date of the Prospectus, neither the Company nor any of its Subsidiaries shall have issued any securities (other than the Securities); (v) since the date of the Prospectus, there shall have been no change in the capital stock of the Company, or any material change in the debt (long or short term) or liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise); (vi) since the date of the Prospectus, no amount of the assets of the Company or any of its Subsidiaries shall have been pledged or mortgaged; (vii) no actions, suits or proceedings, at law or in equity, shall have been pending or, to the best knowledge of the Company, threatened (or circumstances giving rise to same) against the Company or any of its Subsidiaries, or affecting any of its properties or business, before or by any court or federal, state or foreign commission, board or other administrative agency wherein unfavorable decisions, rulings or findings may have, individually or in the aggregate, a Material Adverse Effect; and (vii) no stop order shall have been issued under the 1933 Act and no proceedings therefor shall have been initiated or, to the best knowledge of the Company, threatened or contemplated by the Commission.
(g) At each of the Closing Date and any Option Closing Date, the Underwriters shall have received a certificate of the Company signed by the principal executive officer and by the principal financial officer of the Company, dated the Closing Date or such Option Closing Date, as the case may be, to the effect that each such person has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus and this Agreement, and that:
(i) the Company (A) has been duly organized representations and is validly existing as a corporation in good standing under the laws warranties of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state this Agreement are true and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement if made on and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document Closing Date or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantOption Closing Date, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of has complied with all agreements and covenants and satisfied all conditions contained in this Agreement on its part to be performed or satisfied at or prior to such Closing Date or Option Closing Date, as the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.case may be;
(ivii) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any part thereof has been issued issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such person’s knowledge, after due inquiry, are contemplated or threatened or contemplated under the Actsthreatened;
(viii) each of the Preliminary Prospectus, the Registration Statement, the Preliminary Prospectus and the Prospectus and, if any, each amendment and any amendments or supplements thereto (other than the financial each supplement thereto, contain all statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; included therein, and (A) neither the Registration Statement nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) neither the Prospectus nor any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (C) there is as of the Applicable Time, the Preliminary Prospectus did not pending include any untrue statement of a material fact or threatened against omit to state any material fact necessary in order to make the Company statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) since the date of the most recent financial statements included in the Preliminary Prospectus and the Prospectus (exclusive of any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matterssupplement thereto), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) there has been no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, condition (financial or otherwise), or the earnings, positionbusiness, prospects, stockholders' equity, value, operation, properties, business prospects or results of operations of the Company, which could materially adversely affect the present or prospective ability properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(h) At the Closing Date the Underwriters shall have received a certificate of the Selling Shareholder to perform its obligations under the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct in all respects as if made on and as of the Closing Date and the Selling Shareholder has complied with all agreements and covenants and satisfied all conditions contained in this Agreement on its part to be performed or which in any manner draws into question satisfied at or prior to the validity or enforceability of this Agreement;Closing Date.
(viii) the The Company has full legal rightshall have requested and caused Deloitte, power and authority Hadjipavlou, Sofianos & Cambanis S.A. to enter into this Agreement and the Representative's Warrant, subject as have furnished to the Representative's Warrant Underwriters letters, at the Execution Time, the Closing Date and Option Closing Date, as the case may be, dated respectively as of receipt the Execution Time, the Closing Date and Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, containing statements and information of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, type ordinarily included in accountant’s “comfort letters” with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid financial statements and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(j) On each of the Closing Date any Option Closing Date, there shall have been duly tendered to the Underwriters for their accounts the appropriate number of Securities upon payment therefor by or on behalf of the Underwriters.
(k) No order suspending the sale of the Securities in any jurisdiction designated by the Underwriters pursuant to Section 4(a)(iii) hereof shall have been issued on either the Closing Date or any Option Closing Date, and no proceedings for that purpose shall have been instituted or shall be contemplated.
(l) At the Closing Date, the Securities shall have been approved for listing, and admitted to trading, on the NASDAQ Global Market, subject only to official notice of issuance.
(m) If required under its regulations, the FINRA shall have confirmed that it has not raised any amendments objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(n) On or supplements theretoprior to the date of this Agreement, conflicts with each of the individuals identified on Schedule C shall have executed and delivered to the Underwriters an agreement substantially in the form of Exhibit A hereto; such agreements shall not have been amended or will conflict with or results or will result revoked; and such agreements shall be in any breach or violation full force and effect.
(o) Prior to the Closing Date, the Company and the Selling Shareholder shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(p) The Selling Shareholder shall have delivered to the Underwriters a copy of the duly executed Power of Attorney and a copy of the duly executed Custody Agreement, in each case in form and substance satisfactory to the Underwriters. If any of the terms or provisions ofconditions specified in this Section 6, if not otherwise qualified as to materiality, shall not have been fulfilled in all material respects, and if otherwise qualified as to materiality, shall not have been fulfilled in all respects, when and as provided in this Agreement, or constitutes if any of the opinions and certificates mentioned above or will constitute a default underelsewhere in this Agreement, if not otherwise qualified as to materiality shall not be in all material respects, and if otherwise qualified as to materiality shall not be, reasonably satisfactory in form and substance to the Underwriters and Underwriters’ Counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or result in at any time prior to, the creation or imposition Closing Date by the Underwriters. Notice of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may such cancellation shall be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of any arbitrator▇▇▇▇▇▇, court▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, regulatory body or administrative agency or other governmental agency or body (including▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇ ▇▇▇▇, those having jurisdiction over environmental or similar matters)▇▇ ▇▇▇▇▇, domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the ProspectusClosing Date and, no consent, approval, authorization or order, and no filing withif applicable, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iOption Closing Date.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters to purchase the Notes hereunder shall be are subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall All actions required to be in form taken and substance satisfactory all filings required to be made by the Companies under the Act prior to the Representative and Underwriter's Counsel, sale of the Notes shall have become effective not later than 12:00 p.m., New York time, on been duly taken or made. At and prior to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Companies or the Underwriter, shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsCommission.
(b) The Representative Subsequent to the effective date of this Agreement, there shall not have advised occurred (i) any change, or any development involving a prospective change, in or affecting the Company that condition (financial or other), business, properties, net worth, or results of operations of the Companies, The Money Store or the Surety Provider not contemplated by the Registration Statement, which in the opinion of the Underwriter, would materially adversely affect the market for the Notes, or (ii) any amendment thereto, contains an event or development which makes any statement made in the Registration Statement or Prospectus untrue statement of fact or which, in the Representative's opinionopinion of the Companies and their counsel or the Underwriter and its counsel, is material, requires the filing of any amendment to or omits change in the Registration Statement or Prospectus in order to state a material fact which, in the Representative's opinion, is material and is required by any law to be stated therein or is necessary in order to make the statements therein not misleading, if amending or that supplementing the Prospectus, Registration Statement or any supplement thereto, contains an untrue statement of fact whichProspectus to reflect such event or development would, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light opinion of the circumstances under which they were madeUnderwriter, not misleadingmaterially adversely affect the market for the Notes.
(c) On or prior to the Closing Date, the Representative The Underwriter shall have received from Underwriters' Counselon the Closing Date opinions of Squire, such opinion or opinions with respect Sanders & Dempsey L.L.P., special Arizona counsel for the Comp▇▇▇▇▇, a▇▇ ▇▇▇▇ Bl▇▇▇▇ & Moskowitz, special counsel for the Companies, dated the ▇▇▇▇▇▇▇ ▇▇▇e a▇▇ ▇▇▇▇▇▇sed to the organization of Underwriter in form and scope satisfactory to the Company, the validity of the Securities, the Registration Statement, the Prospectus Underwriter and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such mattersits counsel.
(d) At Closing Date, the Underwriters The Underwriter shall have received on the favorable Closing Date an opinion of Stursberg Eric R. Elwin, Esq., General Counsel of the Companies and The Money St▇▇▇, ▇▇▇▇▇ ▇▇e Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(e) The Underwriter shall have received on the Closing Date an opinion of Rhoads & VeithSinon LLP, counsel to for the CEligible Lender Trustee, dated the ▇▇▇▇▇yng ▇▇▇▇ and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(f) The Underwriter shall have received on the Closing Date an opinion of counsel for Ambac Assurance Corporation (the "Surety Provider"), dated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(g) The Underwriter shall have received on the Closing Date an opinion of White & Case, Esqs., counsel for the Indenture Trustee, dated the Clos▇▇▇ ▇ate and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriter shall have received on the Closing Date an opinion or opinions of Stroock & Stroock & Lavan LLP, counsel for the Underwriter, dated the ▇▇▇▇▇▇▇ Da▇▇, ▇▇▇ ad▇▇▇▇▇ed to the Underwriter, in form and scope satisfactory to the Underwriter.
(i) The Underwriter shall have received on the Closing Date from KPMG Peat Marwick LLP a letter dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselthe Underwriter, to the effect that:that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such specified procedures.
(i) There shall not have been, since the Company (A) has been duly organized and respective dates as of which information is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described given in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole any amendment or in part, by reference therein) and the Prospectus and filed as exhibits supplement thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectusmay otherwise be stated therein, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, condition (financial or otherwiseother), or the earnings, positionbusiness, prospects, stockholders' equity, value, operation, properties, business net worth or results of operations of the CompanyCompanies or of The Money Store, which could materially adversely affect and (ii) all the present or prospective ability representations and warranties of the Company to perform its obligations under this Agreement or which Companies and The Money Store contained in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's WarrantBasic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriter shall have received a certificate, subject as dated the Closing Date and signed by an executive officer of the Companies and The Money Store, to the Representative's Warrant effect set forth in this Section 6(j) and in Section 6(k) hereof.
(k) Neither of receipt the Companies nor The Money Store shall have failed at or prior to the Closing Date to have performed or complied with any of an order its respective agreements herein contained and required to be performed or exemptive relief complied with by it hereunder at or prior to the Closing Date.
(l) The Underwriter shall have received by instrument dated the Closing Date (at the option of the Underwriter), in lieu of or in addition to the opinions referred to in clauses (c) through (h) of this Section (6), the right to rely on opinions provided by such counsel and all other counsel under the 1940 Actterms of the Basic Documents or to Moody's Investors Service, Inc. ("Moody's") and Standard & Poor's Rati▇▇▇ ▇▇▇vices, a division of The McGraw-Hill Companies, Inc. ("Standard & Poor's").
(m) Mood▇'▇ ▇▇▇ ▇▇▇ndard & Poor's shall have rated each class of Notes "Aaa" and "AAA", respectively, and there shall not have been any announcement by Moody's or Standard & Poor's that (i) it is downgrading any of its ratings assigned to consummate any class of Notes or (ii) it is reviewing its ratings assigned to any class of Notes with a view to possible downgrading, or with negative implications, or direction not determined.
(n) The Surety Provider shall have provided (i) a Note Surety Bond relating to the transactions provided for therein; Notes, (ii) a certificate dated the Closing Date and this Agreement and signed by an executive officer of the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, Surety Provider with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement accuracy of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application information relating to or affecting enforcement the Surety Provider contained in the Prospectus and (iii) a letter addressed to the Underwriter and dated the date hereof from KPMG Peat Marwick LLP, independent certified public accountants, consenting to the inclusion of creditors' rights and its report on the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and financial statements of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described Surety Provider in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiip) except Deposits required by the Sale and Servicing Agreement into the Pre-Funding Account, Capitalized Pre-Funding Account and Capitalized Interest Account shall have been made.
(q) The Companies shall have furnished or caused to be furnished to the Underwriter an executed copy of each of the Basic Documents and such further certificates and documents as described the Underwriter shall have requested. All such opinions, certificates, letters and other documents will be in compliance with the Prospectusprovisions hereof only if they are reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter. Any certificate or document signed by any officer of the Companies or The Money Store and delivered to the Underwriter, no consentor to counsel for the Underwriter, approvalshall be deemed a representation and warranty by the Companies or The Money Store, authorization or orderrespectively, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, to the Underwriter as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company istatements made therein.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholder contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's officers of and the Company Selling Stockholder made pursuant to the provisions hereof; and , to the performance by the Company on and as the Selling Stockholder of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the Original Registration Statement with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains received an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in dated the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Firm Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CStra▇▇▇▇▇ ▇y▇▇c▇ ▇▇▇l▇▇▇ & ▇aut▇, dated ▇▇unsel for the Closing Date, addressed to Company [and the Underwriters and in form and substance satisfactory to Underwriters' CounselSelling Stockholder], to the effect that:
(i) the Company (A) has and the Subsidiaries have been duly organized and is are validly existing as a corporation corporations in good standing under the laws of its jurisdictiontheir respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company and the Subsidiaries, taken as a whole;
(Bii) has all requisite the Company and each of the Subsidiaries have corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its their respective properties and conduct its business their respective businesses as described in the Registration Statement and the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, and the Company has not received any notice of proceedings relating corporate power to enter into this Agreement and to carry out all the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state terms and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit provisions hereof to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entitybe carried out by it;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially by the Company free and clear of any perfected security interests or any other security interests, liens, encumbrances, equities or claims;
(iv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof nonassessable, have no rights of rescission been issued in compliance with respect thereto, all applicable federal and are state securities laws and were not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive rights or other similar rights of any stockholder contained in to subscribe for or purchase securities; the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, Firm Securities have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable nonassessable; the Securities have been duly included for trading on the Nasdaq National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities; and conform no holders of securities of the Company are entitled to have such securities registered under the description thereof contained Registration Statement;
(v) the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the holders thereof will not be subject to any liability statements set forth under the laws headings "Business--Government Regulation" and "Business--Legal Proceeding" in the Prospectus, insofar as such statements constitute a summary of the State legal matters, documents or proceedings referred to therein, provide a fair summary of New York as currently in effect solely as such holders; legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(vii) (A) no legal or governmental proceedings are pending to which the Company or any of the Subsidiaries is a party or to which the property of the Company or any of the Subsidiaries is subject that are required to be taken for described in the authorizationRegistration Statement or the Prospectus and are not described therein, issue and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or any of the Subsidiaries or with respect to any of their respective properties and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) the issuance, offering and sale of the Securities has been duly and validly taken; and to the certificates representing Underwriters by the Securities are in due and proper form. Upon the issuance and delivery Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the Representative's Warrant consummation of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with transactions herein contemplated do not (A) require the issuance by the Company consent, approval, authorization, registration or qualification of the Securitiesor with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company conflict with or result in a breach or violation of any of its obligations under this Agreementthe terms and provisions of, or (D) resales constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company or any of the Securities in connection with Subsidiaries is a party or by which the distribution contemplated hereby.Company or any of the Subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of the Subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or Subsidiaries;
(ivix) the Registration Statement is effective under the Acts, and, if applicable, Act; any required filing of all pricing information the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and 424(b) has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, manner and within the time period required by Rules 434 and 424(b); and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any amendment thereto has been issued issued, and no proceedings for that purpose have been instituted or threatened or, to the best knowledge of such counsel, are pending or threatened or contemplated under by the ActsCommission;
(vx) each of the Preliminary Prospectus, the Registration StatementStatement originally filed with respect to the Securities and each amendment thereto, any Rule 462(b) Registration Statement and the Prospectus and any amendments or supplements thereto (in each case, other than the financial statements and other financial and statistical data included information contained therein, as to which such counsel need express no opinion need be renderedopinion) comply as to form in all material respects with the applicable requirements of the Acts Act, the Exchange Act and the Rules respective rules and Regulations.regulations of the Commission thereunder;
(vixi) if the Company elects to rely on Rule 434, the best of Prospectus is not "materially different", as such counsel's knowledgeterm is used in Rule 434, (A) there are no agreements, contracts or other documents required by from the Acts to be described prospectus included in the Registration Statement and at the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement time of its effectiveness or an effective post-effective amendment thereto (or required including such information that is permitted to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company omitted pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementRule 430A);
(viixii) upon the delivery by the Selling Stockholder to the several Underwriters of certificates for the Firm Securities or Option Securities, as the case may be, being sold hereunder by the Selling Stockholder against payment therefor as provided herein, assuming that each of the Underwriters which has severally purchased such Firm Securities acquires such Firm Securities in good faith and without notice of any adverse claim (within the meaning of the applicable Uniform Commercial Code), such Underwriter will have acquired all of the rights of the Selling Stockholder to the Firm Securities sold by the Selling Stockholder hereunder, and in addition will have acquired title to such Firm Securities free and clear of any adverse claim; and
(xiii) the Company has full legal rightsale of Firm Securities to the Underwriters by the Selling Stockholder pursuant to this Agreement, power and authority to enter into the compliance by the Selling Stockholder with the other provisions of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the other transactions herein contemplated hereindo not (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will (B) conflict with or results or will result in any a breach or violation of any of the terms or and provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan lease or credit agreement or any other agreement or instrument known to such counsel to which the Company Selling Stockholder is a party or by which it is the Selling Stockholder or may be bound or to which any of its the Selling Stockholder's properties or assets (tangible or intangible) is or may be subjectare bound, or the charter documents or bylaws of the Selling Stockholder; and nothing has come to such counsel's attention which causes such counsel to believe that the sale of Firm Securities to the Underwriters by the Selling Stockholder pursuant to this Agreement, the compliance by the Selling Stockholder with the other provisions of this Agreement and the consummation of the other transactions herein contemplated will result in a violation of any indebtedness, statute or (C) any statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel to be applicable to the Selling Stockholder.
(xiv) the Company is not subject to registration as an investment company under the Investment Company Act of 1940, as amended.
(xv) neither the Company nor any of the Subsidiaries is in violation of any federal or state law or regulation relating to occupational safety and health or to the storage, handling or transportation of hazardous or toxic materials and the Company and each of the Subsidiaries has received all permits, licenses or other approvals required of them under applicable federal and state occupational safety and health and environmental laws and regulations to conduct their respective businesses, and the Company and each of the Subsidiaries are in compliance with all terms and conditions of any such permit, license or approval, except any such violation of law or regulation, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals which would not, singly or in the aggregate, result in a material adverse change in the condition (financial or otherwise), business prospects, net worth or results of operations of the Company and the Subsidiaries, except as described in the Prospectus.
(xvi) there are no holders of securities of the Company, who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to register under the Act, or to include in the Registration Statement, securities held by them.
(xvii) neither the Company nor the Subsidiaries is in violation of any healthcare law, ordinance, administrative or governmental rule or regulation applicable to the Company of any arbitratoror the Subsidiaries, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental relating to product testing, marketing approvals and reimbursement by government agencies or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not third-party payors. Such counsel shall also state that they have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as reason to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the performance statements therein not misleading or that the Prospectus, as of this Agreement and its date or the transactions contemplated hereby;
(ix) date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering any such counsel's knowledgeopinion, such counsel may rely, as to matters of fact, to the properties and business extent such counsel deems proper, on certificates of responsible officers of the Company conform and public officials. References to the description thereof contained Registration Statement and the Prospectus in this paragraph (b) shall include any amendment or supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated the Firm Closing Date, of Stroock & Stroock & Lava▇ ▇▇▇, counsel for the Underwriters, with respect to the issuance and sale of the Firm Securities, the Registration Statement and the Prospectus;, and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(xd) The Representatives shall have received an opinion ("I.P. Opinion Letter"), dated the Firm Closing Date, of Knobbe, Martens, Olso▇ & ▇ear LLP, special counsel to the Company, relating to certain intellectual property matters to the effect that:
(i) the statements in the Registration Statement, insofar as such counselstatements pertain to Intellectual Property matters, accurately and fairly represent the information referred to therein.
(ii) (A) there are no rights of parties other than the Company to any of the patents, patent applications or trade secret rights related to the technology described in the Registration Statement or I.P. Opinion Letter, (B) other than as disclosed in the Registration Statement or I.P. Opinion Letter, there are no pending or threatened actions, suits, proceedings or claims by others challenging the Company's knowledgerights to or in any such patents, patent applications or trade secret rights, and (C) there are no pending or threatened actions, suits, proceedings or claims by others that the Company is not infringing or otherwise violating any patent or trade secret rights of others.
(iii) there are no facts or circumstances which, if asserted in breach oflitigation, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument would be likely to which the Company is a party or by which render any of the Company may trade secret rights reflected in the Company's filed patent applications invalid or unenforceable except to the extent they have been or will be bound disclosed upon publication of such patent applications or upon the issuance of patents.
(iv) there are no agreements with third parties relating to the acquisition, licensing and/or transfer of intellectual property rights which have or are anticipated to have a material impact on the property Company's existing or assets (tangible future business, including license agreements, joint venture agreements, marketing and/or distribution agreements or intangible) other collaboration agreements, that are not currently in effect or that will be expiring soon, nor further has there been any notice of any of the Company itermination or other act indicating a d
Appears in 1 contract
Sources: Underwriting Agreement (Radiance Medical Systems Inc /De/)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form (including the Statement of Eligibility and substance satisfactory to Qualification of the Representative and Underwriter's Counsel, Trustee on Form T-1 (the "Form T-1")) shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeRepresentatives, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement (including the Form T-1) shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Firm Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's Representatives' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Representatives' reasonable opinion, is material, or omits to state a fact which, in the Representative's Representatives' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representatives' Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Zelnick, Morse, Rose & VeithLander, LLP, counsel to the C▇▇▇▇▇yCompany, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and MMI (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge after due inquiry, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Company owns one hundred percent (100%) of the outstanding capital stock of MMI free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever;
(iii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after due inquiry, neither the Company does not own nor MMI owns an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iiiiv) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Debentures," and to the best of such counsel's knowledge, knowledge after due inquiry, neither the Company nor MMI is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Representatives' Warrant Agreement, and as described in the Prospectus. The ; the Securities, the Indenture, the Representatives' Warrants, the Representatives' Securities, the Underlying Stock, and all other securities issued or issuable by the Company, Company or MMI conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All ; all issued and outstanding securities of the Company or MMI have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained or MMI, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company or MMI or applicable securities laws; the Debentures have been duly authorized and, when validly authenticated, issued, delivered and paid for in the certificate of incorporation manner contemplated by the Indenture, will be duly authorized, validly issued and outstanding obligations of the Company orentitled to the benefits of the Indenture; the shares of Common Stock issuable upon conversion of the Debentures will, to upon such counsel's knowledgeissuance, any agreementbe duly authorized, document or instrument. The validly issued, fully paid and non-assessable; the Company has duly authorized and reserved for issuance upon conversion of the Debentures the shares of Common Stock issuable upon such conversion; the Securities, the Representatives' Warrants, the Representatives' Securities and the Underlying Stock to be sold by the Company hereunder hereunder, under the Indenture and under the Representatives' Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation securityholder of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the ProspectusMMI; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities, the Representatives' Warrants, the Representatives' Securities and the Underlying Stock has been duly and validly taken; and the certificates representing the Securities and the Representatives' Warrants are in due and proper form. Upon ; the Representatives' Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law); upon the issuance and delivery pursuant to this Agreement Agreement, the Indenture and the Representative's Representatives' Warrant Agreement of the Securities, the Representatives' Warrants and the Representatives' Securities to be sold by the CompanyCompany hereunder and thereunder, the Company will convey against payment therefore as provided herein, to the Underwriters and or the holders of the Representative's WarrantRepresentatives, as the case may be, will acquire good and marketable title to the Securities thereto free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or all liens and other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.encumbrances;
(ivv) the Registration Statement (including the Form T-1) is effective under the Acts, and, Act and the Indenture has been duly qualified under the Trust Indenture Act; if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or the qualification of the Trustee has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct or the Trust Indenture Act;
(vvi) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and the Indenture and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act, the Trust Indenture Act and the Rules and Regulations.;
(vivii) to the best of such counsel's knowledgeknowledge after due inquiry, (A) there are no agreements, contracts or other documents required by the Acts Act or the Trust Indenture Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company or MMI is a party or by which it either or them is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company or MMI any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company or MMI which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (2y) questions the validity of the capital stock of the Company or MMI or this Agreement Agreement, the Indenture or the Representative's Representatives' Warrant Agreement, or of any action taken or to be taken by the Company or MMI pursuant to or in connection with any of the foregoing; and (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company or MMI before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, financial or otherwisebusiness, or the earnings, position, prospectsaffairs, stockholders' equity, value, operationoperations, properties, business or results of operations of the CompanyCompany or MMI, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Indenture or the Representatives' Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Indenture or the Representatives' Warrant Agreement;
(viiviii) the Company has full legal right, the corporate power and authority to enter into each of this Agreement Agreement, the Indenture and the Representative's Warrant, subject as to the Representative's Representatives' Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement Agreement, the Indenture and the Representative's Representatives' Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Agreement ; each of this Agreement, the Indenture and the Representative WarrantRepresentatives' Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution execution, delivery or delivery performance of this Agreement Agreement, the Indenture and of the Representative's Warrant, its performance hereunder and thereunderRepresentatives' Warrant Agreement, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or will result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company or MMI pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the CompanyCompany or MMI, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company or MMI is a party or by which it either of them is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or MMI or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or MMI or any of its their activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viiiix) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under federal securities or Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities, Representatives' Warrants, the Representatives' Securities pursuant to or the Underlying Stock as contemplated by the Prospectus and the Registration Statement, the performance of this the Agreement, the Indenture and the Representatives' Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ixx) to the best of such counsel's knowledgeknowledge after due inquiry, the properties and business businesses of the Company and MMI conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(xxi) to the best knowledge of such counsel's knowledge, and except as disclosed in the Registration Statement and the Prospectus, neither the Company nor MMI is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company or MMI is a party or by which any of the Company may be or MMI is bound or to which the property or assets (tangible or intangible) of any of the Company iCompa
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates, franchises and permits and all domestic and foreign corporation in any jurisdiction (to such counsel's knowledgelaws, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)rules and regulations; to such counsel's knowledgeand, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state domestic and local foreign laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledgeexcept as described in the Prospectus, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION", and, to such counsel's knowledge, after due inquiry, and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement of the Firm Securities and the Option Securities and the Representative's Warrant of the Securities Warrants to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company, and the purchase by the Representative of the Representative's Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement or the Representative's Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for therein; and each of this Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Company, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or they are or may be bound or to which any of its or their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its their respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Firm Securities and the Option Securities pursuant to the Prospectus and the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach ofhas good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in default underthe Prospectus to be owned or leased by it, any term in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or provision other restrictions or equities of any licensekind whatsoever, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ithan those r
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement Statement, which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not no later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, Representative and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Units and any price-price- related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representative's Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At On the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Scheichet & VeithDavis, P.C., counsel to the CCompany, d▇▇▇▇▇y, dated ▇ the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly qualified and licensed and in good standing as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no each jurisdiction in which failure to so qualify would have a material adverse effect on its ownership or leasing of any properties or the Company)character of its operations requires such qualification or licensing; to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business business, assets or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement, the Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Public Warrants and the Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefore the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, Representative will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters and the Representative of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, inquiry no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or pending, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements supplement thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5under the Act and the Rules and Regulations of the Commission thereunder; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Representative's Warrant Agreement or the Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Representative's Warrant Agreement or the Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's WarrantAgreement, subject as to the Representative's Warrant of receipt of an order or exemptive relief under Agreement and the 1940 Act, Warrant Agreement and to consummate the transactions provided for therein; and this Agreement and Agreement, the Representative's Warrant each Agreement and the Warrant Agreement has been duly authorized, executed and delivered by the Company. This Agreement, the Representative's Warrant Agreement and the Representative Warrant, Warrant Agreement assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, and thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of Agreement, the Representative's WarrantWarrant Agreement and the Warrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs, position, shareholder's equity, value, operations, properties, business or results of operations of the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement, the Representative's Warrant Agreement and the Warrant Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ib
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and each Selling Securityholder contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's and each Selling Securityholder's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, Selling Securityholder of its covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any Integrated Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any Integrated Prospectus or any amendment or supplement thereto shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filingStatement, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsProspectus or any Integrated Prospectus or otherwise).
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains received an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in dated the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Firm Closing Date, the Representative shall have received from Underwriters' Counselof Fulbright & Jaworski L.L.P., such opinion or opinions with respect to the organization of counsel for the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect thatt▇▇▇:
(i) the Company and each of its subsidiaries listed in Schedule 3 hereto (Athe "Subsidiaries") has have been duly organized incorporated and is are validly existing as a corporation corporations in good standing under the laws of its jurisdiction, their respective jurisdictions of incorporation;
(ii) the Company and (B) has all requisite each of the Subsidiaries have corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its their respective properties and conduct its business their respective businesses as described in the Registration Statement and the Prospectus or any Integrated Prospectus; , and the Company is not qualified has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof to be carried out by it;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except as a foreign corporation noted in any jurisdiction (such opinion, to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, are owned beneficially by the Company has not received any notice of proceedings relating to the revocation or modification free and clear of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entityperfected security interest;
(iiiiv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or than the Securities issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities on exercise of the Company Warrants, have been duly authorized and validly issued and are fully paid and non-assessablenonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Firm Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and nonnonassessable; the Securities have been duly authorized for listing, subject to official notice of issuance, on the American Exchange; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities under the Delaware General Corporation Law or the Company's Certificate of Incorporation or by-assessable laws; and conform to such counsel's knowledge, except as disclosed in the Prospectus, no holders of securities of the Company are entitled to have such securities registered under the Registration Statement or to any preemptive or other rights to subscribe for any of the Securities that are contained in any agreements described in clause (viii) (B) of this Section 9(b);
(v) the Common Stock conforms in all material respects to the description thereof contained set forth under the heading "Description of Capital Stock" in the Prospectus; ;
(vi) the holders thereof will not be subject to any liability under the laws execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the State Company and this Agreement has been duly executed and delivered by the Company;
(vii) to such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of New York as currently in effect solely as such holders; all corporate action the Subsidiaries is a party or to which the property of the Company or any of the Subsidiaries is subject that are required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are described in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and any Integrated Prospectus and are not described therein; and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts contract or other documents document is required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits an exhibit to the Registration Statement other than those that is not described in the Registration Statement (therein or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits theretorequired;
(viii) the issuance, offering and the exhibits which have been filed are correct copies sale of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise Securities to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken Underwriters by the Company pursuant to or in connection with any of this Agreement, the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting compliance by the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in with the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results other provisions of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the other transactions herein contemplated hereindo not: (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority having jurisdiction over the conduct of its business Company, except such as described in the Registration Statement, the Prospectus, and any amendments have been obtained or supplements thereto, conflicts with such as may be required under state securities or will blue sky laws; (B) conflict with or results or will result in any a breach or violation of any of the terms or and provisions of, or constitutes or will constitute a default under, or result in the creation or imposition any indenture, mortgage, deed of any lientrust, charge, claim, encumbrance, pledge, security interest, defect lease or other restriction or equity instrument relating to the borrowing of any kind whatsoever upon, any property or assets (tangible or intangible) of money known to such counsel to which the Company pursuant or any Subsidiary is bound or any other agreement identified to such counsel by the Company as being material to the terms ofCompany and the Subsidiaries, taken as a whole; or (AC) violate the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed Company or the charter documents or by-laws of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, the Subsidiaries; or (CD) violate any statute, statute or judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency court or other governmental agency authority or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over arbiter known to such counsel to be applicable to the Company or any of the Subsidiaries;
(ix) the Registration Statement has become effective under the Act and, to such counsel's knowledge, and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement, the Prospectus and any Integrated Prospectus or any amendment or supplement thereto has been issued, and, to such counsel's knowledge, no proceedings for that purpose have been instituted or threatened or are contemplated by the Commission; and
(x) the Registration Statement and the Prospectus (excluding the financial statements and other financial or statistical information contained or incorporated by reference therein and any information furnished by the Underwriters, the Selling Securityholders or the Additional Selling Securityholders, as to which such counsel need express no opinion) comply or their face as to form in all material respects with the applicable requirements of the Act and the respective rules and regulations of the Commission thereunder. Such counsel shall also state that it has participated in conferences with officers and other representatives of the Company, the Underwriters, the Selling Securityholders and the Additional Selling Securityholders, counsel to the Underwriters and representatives of the independent public accountants of the Company and with your representatives, at which conferences the contents of the Registration Statement and the Prospectus were discussed. Although such counsel need not pass upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and need not make any representation that it has independently verified the accuracy, completeness or fairness of such statements, such counsel shall state that on the basis of the foregoing and the information disclosed to it (relying as to materiality to a large extent upon the officers and other representatives of the Company, the Underwriters, Selling Securityholders and Additional Selling Securityholders), (i) no facts came to its activities or propertiesattention that lead it to believe that the Registration Statement, except for conflictsas of the time it was declared effective under the Act, breaches, violations, defaults, creations or impositions which do not and would not have contained any untrue statement of a material adverse effect fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading (it being understood that such counsel need not express any view with respect to the financial statements, including the notes and schedules thereto and the auditor's report thereon, or any other information of a financial, numerical, statistical or accounting nature set forth or referred to in the Registration Statement or any document incorporated therein by reference or any exhibits thereto), and (ii) no facts have come to such counsel's attention that lead it to believe that the Prospectus, as of the time it was filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any view with respect to the financial statements, including the notes and schedules thereto and the auditor's report thereon, or any other information or a financial, numerical, statistical or accounting nature set forth or referred to in the Prospectus or any document incorporated therein by reference). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the CompanyCompany and public officials. References to the Registration Statement and the Prospectus in this paragraph (b) shall include any amendment or supplement thereto at the date of such opinion.
(viiic) except as described The Selling Securityholders shall have furnished to the Representatives the opinions of one or more counsel, reasonably satisfactory to the Representatives, for the Selling Securityholders, dated the Closing Date, to the effect that:
(i) each Selling Securityholder has full corporate and other power to enter into this Agreement, the Custody Agreement and the Power-of-Attorney and to sell, transfer and deliver the Securities being sold by such Selling Securityholder hereunder in the Prospectusmanner provided in this Agreement and to perform its obligations under the Custody Agreement; the execution and delivery of this Agreement, no the Custody Agreement and the Power-of-Attorney have been duly authorized by all necessary corporate and other action of each Selling Securityholder; this Agreement, the Custody Agreement and the Power-of-Attorney have been duly executed and delivered by each Selling Securityholder; assuming due authorization, execution and delivery by the Custodian, the Custody Agreement and the Power-of-Attorney are the legal, valid, binding and enforceable instruments of such Selling Securityholder, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(ii) the delivery by each Selling Securityholder to the several Underwriters of certificates for the Securities being sold hereunder by such Selling Securityholder against payment therefor as provided herein, will convey valid title to such Securities to the several Underwriters, free and clear of all security interests, liens, encumbrances, equities, claims or other defects;
(iii) the sale of the Securities to the Underwriters by such Selling Securityholder pursuant to this Agreement, the compliance by such Selling Securityholder with the other provisions of this Agreement the Custody Agreement and the consummation of the other transactions herein contemplated do not (i) require the consent, approval, authorization authorization, registration or orderqualification of or with any governmental authority, except such as have been obtained and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky state securities or blue sky laws, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of the charter documents or by-laws of such Selling Securityholder or any of its subsidiaries or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Securityholder or any of its subsidiaries. In rendering such opinion, such counsel may rely, as to which no opinion need be rendered) is required in connection with matters of fact, to the issuance extent such counsel deems proper, on certificates of responsible officers of the Securities pursuant Company and public officials. References to the Registration Statement and the Prospectus in this paragraph (c) shall include any amendment or supplement thereto at the date of such opinion.
(d) The Representatives shall have received an opinion, dated the Firm Closing Date, of Baker & Botts, L.L.P., One Shell Plaza, 910 Louisiana, ▇▇▇▇▇on, ▇▇▇as 77002, c▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ssuance and sale of the Firm Securities, the Registration Statement, the performance of this Agreement Prospectus or any Integrated Prospectus, and such other related matters as the Representatives may reasonably require, and the transactions contemplated herebyCompany shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from Ernst & Young LLP a letter or letters dated, respectively, the date hereof and the Firm Closing Date, in form and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the Company and its consolidated subsidiaries within the meaning of the Act, and the Exchange Act and the applicable rules and regulations thereunder;
(ixii) to such counsel's knowledgein their opinion, the properties audited consolidated financial statements and business schedules examined by them and included in the Registration Statement, the Prospectus and any Integrated Prospectus comply in form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the related published rules and regulations thereunder;
(iii) on the basis of a reading of the latest available interim unaudited consolidated condensed financial statements of the Company conform and its consolidated subsidiaries, carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the description thereof contained comments set forth in this paragraph (iii), a reading of the Registration Statement and minute books of the Prospectus;
(x) to such counsel's knowledgeshareholders, the Company is not in breach of, or in default under, board of directors and any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any committees thereof of the Company may be bound or to which the property or assets (tangible or intangible) and each of any its consolidated subsidiaries, and inquiries of certain officials of the Company iand its consolidated subsidiaries who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated financial statements of the Company and its consolidated subsidiaries included or inco
Appears in 1 contract
Sources: Underwriting Agreement (Shamrock Holdings of California Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the each Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; , and the performance by the Company on and as of the each Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 5:00 p.m. New York time, on the date subsequent to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Representative. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretothereof, contains shall not contain an untrue statement of fact which, in the Representative's opinion, is materiala material fact, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization At each of the Company, the validity of the Securities, the Registration Statement, the Prospectus Effective Date and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At each Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Blau, Kramer, Wactlar & VeithLieberman, P.C. (the "Firm") counsel to the CCompany, dated ▇▇▇ ▇▇▇▇▇y, dated the tive Date and each Closing Date, respectively, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselMillennium, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its jurisdictionincorporation; (B) is duly qualified and licensed for the transaction of business and in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property and assets or the conduct of its Business makes such qualification necessary except where the failure to be so qualified does not now have and will not in the future have a Material Adverse Effect; and (BC) has all requisite corporate power and authority, and has obtained any and all material authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingbodies, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the CompanyBusiness. The disclosures in the Registration Statement concerning the effects of federalFederal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct accurate in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Firm has not been engaged to such counsel's knowledge, perform legal services in connection with any transaction whereby the Company does not own would acquire an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus (and any amendment or supplement thereto, ) under the heading "Capitalization", and, to such counsel's knowledge, after due inquiry" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued authorized; all outstanding shares of Common Stock have been fully paid for and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or and of the Representative's WarrantWarrant Agreement, will be validly issued, issued fully paid and non-assessable and assessable. The Securities conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all . All corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; . The Representative's Securities constitute valid and binding obligations of the certificates representing Company to issue and sell, upon exercise thereof and payment therefor, the Securities are in due number and proper formtype of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Warrant Agreement and the Representative's Warrant RPO of the Securities to be sold by the Companyand Representative's Securities, as applicable, the Underwriters will acquire title to the Firm Securities, and the holders of Representative will acquire title to the Representative's WarrantSecurities, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, ; (B) the purchase by the Underwriters and the Representative of the Firm Securities and the Representative's Securities, respectively, from the Company, (C) Company;(C)the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the RPO or (D) resales of the Firm Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is has become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, and to such counsel's knowledge, after due inquiry, knowledge no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or preventing the use of the preliminary prospectus or any part of any thereof has been issued and no proceedings proceeding for that purpose have has been instituted or are pending is pending, or is threatened or contemplated under the ActsAct;
(v) each counsel does not know of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and or to be filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copiesnot so described or filed; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate and fairly present in all material respects and fairly represent the information required to be shown by Form N-5presented therein; (C) to counsel's knowledge there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental governmental, legal or other proceeding (including, without limitation, limitation those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)Company, or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed. No Federal, (2) questions the validity of the capital stock of the Company state or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no local statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viivi) the Company has full legal right, corporate power and authority to enter into each of this Agreement Agreement, the RPO and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for contemplated therein; and each of this Agreement Agreement, the RPO and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by or on behalf of the Company. This Agreement Each of this Agreement, the RPO and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights generally and the application of general equitable principles in any action, legal or equitable, and except as rights to those provisions relating to indemnity or contribution may be limited by applicable lawas to which no opinion is expressed), and neither . None of the Company's execution execution, delivery or delivery performance of this Agreement and of Agreement, the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinRPO, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or Business will result in any breach or violation of any of the terms or provisions of, or conflicts or will conflict with or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, ; (B) any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders shareholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or ; (C) any Federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflictsor (D) have any Material Adverse Effect on any permit, breachescertification, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consentregistration, approval, authorization consent, license or order, franchise necessary for the Company to own or lease and no filing with, operate any court, regulatory body, government agency of its properties and to conduct its Business or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance ability of the Securities pursuant Company to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated herebymake use thereof;
(ixvii) the Firm has not been engaged to such counsel's knowledgeprovide legal services with respect to, nor does the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach Firm have any knowledge of, any breach of or in a default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholdersshareholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an any obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of the Company is subject or affected. The Company is not in violation of any term or provision of its certificate of incorporation or by-laws or, to counsel's knowledge in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(viii) the statements in the Prospectus under the headings "THE COMPANY", "BUSINESS", "MANAGEMENT," "PRINCIPAL STOCKHOLDERS, "SELLING SECURITY HOLDERS", "CERTAIN TRANSACTIONS", "DESCRIPTION OF SECURITIES", and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, except for any of the foregoing opined upon to the underwriters by counsel to the Company iother than Blau, Kramer, Wactlar & Lieberman, P.C.; are correct in all material respects;
Appears in 1 contract
Sources: Underwriting Agreement (Ripe Touch Greenhouses Inc/)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters hereunder shall to purchase and pay for the Shares shall, in the Representative’s sole discretion, be subject to the continuing accuracy satisfaction or waiver of the representations and warranties of the Company herein as of the date hereof and as of following conditions on or prior to the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which and all post-effective amendments thereto shall be effective and the Prospectus and each Issuer Free Writing Prospectus required shall have been filed as required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time period prescribed by, and in form compliance with, the Rules and substance satisfactory Regulations, and any request of the Commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the Representative Representatives and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented complied with to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no its reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or taken or, to the knowledge of the Company, shall be pending contemplated or contemplated threatened by the Commission and no injunction, restraining order or order of any request on the part nature by a federal or state court of the Commission for additional information competent jurisdiction shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A issued as of the Rules and Regulations, Closing Date which would prevent the price issuance of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and RegulationsShares.
(b) The Representative On the Closing Date, the Underwriters shall not have advised received the Company that opinion, dated as of such Closing Date and addressed to the Registration StatementUnderwriters, or any amendment theretoof Skadden, contains an untrue statement of fact whichArps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, substantially in the Representative's opinion, is material, or omits to state a fact which, in form as agreed on the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingdate hereof.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from the opinion, in form and substance satisfactory to the Underwriters' Counsel, dated as of such opinion or opinions Closing Date, and addressed to the Underwriters, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus certain legal matters relating to this Agreement and such other related matters as the Representatives may request and Underwriters' Counsel reasonably require. In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such papers certificates and other documents and information as they it may reasonably request to enable them to pass upon such matters.
(d) At On the date hereof, the Underwriters shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Underwriters with respect to the audited and any unaudited or pro forma financial information included or incorporated by reference in the General Disclosure Package. On the Closing Date, the Underwriters shall have received from the favorable opinion of Stursberg & VeithIndependent Accountants a comfort letter dated the Closing Date, as the case may be, in form and substance satisfactory to counsel for the Underwriters, which shall refer to the C▇▇▇▇▇ycomfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(e) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of such Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of such Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Registration Statement, the General Disclosure Package and the Prospectus, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(h) The Underwriters shall have received a certificate of the Company, dated the Closing Date, addressed to as the Underwriters case may be, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and in form and substance satisfactory to Underwriters' Counselthe Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company (A) has been duly organized contained in this Agreement are true and is validly existing correct on and as a corporation in good standing under of the laws Applicable Time and on and as of its jurisdictionsuch Closing Date, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date;
(ii) at such Closing Date, since the date hereof or since the date of proceedings relating to the revocation or modification most recent financial statements in the General Disclosure Package and the Prospectus (exclusive of any such authorizationamendment or supplement thereto after the date hereof), approvalno event or development has occurred, orderand no information has become known, licensethat, certificate, franchise, or permit which, singly individually or in the aggregate, if the subject of an unfavorable decision, ruling has or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit be reasonably likely to state have a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entityMaterial Adverse Effect;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, Act and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued issued, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted taken or are pending are, to his or her knowledge, contemplated or threatened or contemplated under by the Acts;Commission; and
(viv) each the sale of the Preliminary ProspectusShares hereunder has not been enjoined (temporarily or permanently).
(i) The shares of Common Stock issuable upon conversion of the Shares shall have been duly listed for quotation on the New York Stock Exchange.
(j) The Company shall have caused each executive officer and director of the Company to execute and deliver to the Representative, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex B (the “Lock-up Agreement”). On or before the Closing Date, the Registration StatementUnderwriters and counsel for the Underwriters shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Prospectus and any amendments Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or supplements thereto (other than instruments delivered pursuant to this Agreement will comply with the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form provisions hereof only if they are reasonably satisfactory in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best Underwriters and counsel for the Underwriters. The Company shall furnish to the Underwriters such conformed copies of such counsel's knowledgedocuments, (A) there are no agreementsopinions, contracts or other documents required by certificates, letters, schedules and instruments in such quantities as the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the CompanyUnderwriters shall reasonably request.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares to be delivered at each Time of Delivery shall be subject subject, in their discretion, to the continuing accuracy of the representations and warranties of each of the Company and Parent contained herein as of the date hereof and as of the Closing Date and each Option Closing Datesuch Time of Delivery, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company officers of the Company made pursuant to the provisions hereof; and , to the performance by each of the Company on and as of the Closing Date and each Option Closing Date, if any, Parent of its covenants and obligations hereunder agreements hereunder, and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement which shall be in form and substance satisfactory If the registration statement as amended to date has not become effective prior to the Representative and Underwriter's Counselexecution of this Agreement, such registration statement shall have become been declared effective not later than 12:00 p.m.11:00 a.m., New York Hartford, Connecticut time, on the date of this Agreement or such later date and and/or time as shall be have been consented to by you in writing by writing. The Prospectus and any amendment or supplement thereto shall have been filed with the Representative, and, at Closing Date Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing and each Option Closing Date, if any, in accordance with Section 5(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted instituted, threatened or, to the knowledge of the Company, Parent or shall be pending or the Representatives, contemplated by the Commission Commission; and any request all requests for additional information on the part of the Commission for additional information shall have been complied with to the your reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationssatisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be satisfactory in all material respects to counsel to the Underwriters.
(c) The Representative Representatives shall not have advised received copies of executed lock-up agreements from each of Parent, the Company and the Company's officers and directors who own shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or who may be issued shares of Common Stock under an option plan or other arrangement to the effect that such individuals and entities will not offer, sell, contract to sell, or otherwise dispose of, any such shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock for a period of 180 days after the date of the Prospectus without the written consent of Advest, Inc.
(d) The Representatives shall have received at or prior to the First Time of Delivery from the Underwriters' counsel the Preliminary Blue Sky Memorandum, such memorandum to be in form and substance satisfactory to the Representatives.
(e) LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, shall have furnished to you such opinion or opinions, dated such Time of Delivery, with respect to the incorporation of the Company, the validity of the Shares being delivered at such Time of Delivery, the Registration Statement, the Prospectus, and other related matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(g) You shall have received an opinion, dated such Time of Delivery, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation under the laws of the State of Indiana and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder.
(ii) Each of the subsidiaries listed on Exhibit 21 to the Registration Statement (the "Subsidiaries") of the Company is validly existing as a corporation in good standing (where applicable) under the laws of its jurisdiction of incorporation and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Company's authorized, issued and outstanding capital stock is as disclosed in the Prospectus. All of the issued shares of Common Stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description of the Common Stock contained in the Prospectus. None of the outstanding shares of Common Stock have been issued in violation of the preemptive or other similar rights of any shareholder or warrantholder of the Company arising by operation of law, under the Articles of Incorporation or Bylaws of the Company or, to our knowledge, under any agreement to which the Company or any of its Subsidiaries is a party. The issuance of the shares of Common Stock is not subject to preemptive or other similar rights under the Articles of Incorporation or Bylaws of the Company or, to our knowledge, under any agreement to which the Company or any of its Subsidiaries is a party.
(iv) All of the issued shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, to such counsel's knowledge, are owned beneficially by the Company or its subsidiaries, free and clear of all liens, security interests, pledges, charges, encumbrances, shareholders' agreements, voting agreements, proxies, voting trusts, defects, equities or claims of any nature whatsoever (collectively, "Encumbrances"), including, without limitation, Encumbrances arising or resulting from any indenture, mortgage, deed of trust, loan agreement, lease or other agreement of or entered into by Parent, except for the Pledges and the Stockholder Agreement (as such term is defined in the Prospectus).
(v) When the Shares have been duly delivered against payment therefor as contemplated by this Agreement, the Shares will be duly authorized, validly issued and fully paid and nonassessable, the holders thereof will not be subject to personal liability solely by reason of being such holders and the Shares will conform to the description of the Common Stock contained in the Prospectus; the certificates evidencing the Shares will comply with all applicable requirements of Indiana law; and the Shares will have been listed on the Nasdaq National Market.
(vi) To such counsel's knowledge, neither the Company nor any of its subsidiaries is, or with the giving of notice or passage of time or both, would be, in violation of its Articles of Incorporation or Bylaws, in each case as amended to date.
(vii) The sale of the Shares being sold at such Time of Delivery and the performance of this Agreement and the consummation of the transactions herein contemplated will not violate any provision of the Articles of Incorporation or Bylaws of the Company or any of its Subsidiaries, in each case as amended to date, or to such counsel's knowledge, any existing law, statute, rule or regulation, or conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument known to such counsel to which the Company or any such Subsidiary is a party or to which any of their respective properties or assets is subject (except for any conflicts with, breaches of or violations of any such indentures, mortgages, deeds of trust, loan agreements, leases or other agreements or instruments which would not, individually or in the aggregate, have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole), or, conflict with or violate any order, judgment or decree known to such counsel, of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their respective properties or assets, except with respect to any statute, rule or regulation of any regulatory authority imposing any obligation on the part of the Underwriters by way of their purchase of the Shares, as to which no opinion need be rendered.
(viii) To such counsel's knowledge, no consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares or the consummation of the transactions contemplated by this Agreement, except such as have been or will have been obtained and are or will be in effect, and except the registration of the Shares under the Act, the Exchange Act and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of the Shares by the Underwriters, as to which such counsel expresses no opinion.
(ix) To such counsel's knowledge and other than as disclosed in or contemplated by the Prospectus, there is no litigation, arbitration, claim, proceeding (formal or informal) or investigation pending or threatened, in which the Company or any of its Subsidiaries is a party or of which any of their respective properties or assets is the subject which, if determined adversely to the Company or any such Subsidiary, would individually or in the aggregate have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole.
(x) The statements in the Prospectus under "Business -- Regulation," "Business -- Legal Proceedings," "Description of Capital Stock" and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations, or legal conclusions, are correct in all material respects.
(xi) This Agreement has been duly authorized, executed and delivered by the Company.
(xii) Neither the Company nor any of its subsidiaries nor Parent is an "investment company" or a company "controlled" by an investment company as such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the Investment Company Act of 1940, as amended.
(xiii) The Registration Statement and the Prospectus and each amendment or supplement thereto (other than the financial statements, the notes and schedules thereto and other financial data included therein, to which such counsel need express no opinion), as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the respective rules and regulations thereunder. The descriptions in the Registration Statement and the Prospectus of contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required.
(xiv) Such counsel has been advised by the Division of Corporation Finance of the Commission that the Registration Statement has become effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to such counsel's knowledge, (A) no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and (B) no proceedings for that purpose have been instituted or threatened or are contemplated by the Commission. Such counsel shall also state that they have participated in the preparation of the Registration Statement and the Prospectus and in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of and counsel to the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although such counsel has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, and although such counsel has not undertaken to verify independently the accuracy or completeness of the statements in the Registration Statement or the Prospectus and, therefore, would not necessarily have become aware of any material misstatement of fact or omission to state a material fact, on the basis of and subject to the foregoing, nothing has come to such counsel's attention to lead them to believe that the Registration Statement, or any further amendment theretothereto made prior to such Time of Delivery, on its effective date and as of such Time of Delivery, contained or contains an any untrue statement of a material fact which, in the Representative's opinion, is material, or omitted or omits to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On , or that the Prospectus, or any amendment or supplement thereto made prior to such Time of Delivery, as of its issue date and as of such Time of Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the Closing Datestatements therein, in the light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, notes and schedules thereto and other financial and statistical data contained in the Registration Statement, any amendment thereto, or the Prospectus Prospectus, or any amendment or supplement thereto). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deem proper, on certificates of officers of the Company and public officials and letters from officials of the NASD and on the opinions of other counsel reasonably satisfactory to you and your counsel as to matters which are governed by laws other than the laws of the State of Indiana and the Federal laws of the United States; provided that such counsel shall state in their opinion that they are so relying, and they are justified in relying on such other opinions. Copies of such certificates of officers of the Company and other related matters as opinions shall be addressed and furnished to the Representatives may request Underwriters and furnished to counsel for the Underwriters' Counsel .
(h) You shall have received an opinion, dated such papers and information as they request to enable them to pass upon such matters.
(d) At Closing DateTime of Delivery, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇ ▇. ▇▇▇▇▇y, dated Esquire, General Counsel of the Closing DateCompany and Parent, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselyou and your counsel, to the effect that:
(i) the The Company (A) has been duly organized incorporated, is validly existing as a corporation under the laws of the State of Indiana and has the corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder. The Company is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business, so as to require such qualification, except where the failure to so qualify would not have a material adverse effect on the financial position, results of operations or business of the Company and its subsidiaries taken as a whole. Parent has been duly incorporated, is validly existing as a federally chartered corporation in good standing under the laws of Canada and has the corporate power and authority to enter into this Agreement and perform its obligations hereunder.
(ii) Each of the subsidiaries of the Company is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, jurisdiction of incorporation and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iown or
Appears in 1 contract
Sources: Underwriting Agreement (Symons International Group Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to the continuing accuracy in all materials respects of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Overallotment Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Overallotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Overallotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Overallotment Closing Date, if any, of each of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:00 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriter, and, at Closing Date and each Option Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriter shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's opinion, and the opinion of its counsel is material, material or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's reasonable opinion, or the opinion of its counsel is material, or omits to state a fact which, in the RepresentativeUnderwriter's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to At the Closing Date and the Overallotment Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg Stea▇▇▇ ▇▇▇v▇▇ ▇▇▇l▇▇ ▇▇▇s▇▇▇▇ ▇▇▇a▇▇▇▇ & Veith, counsel to the C▇itt▇▇▇▇▇y, ▇.A., counsel to the Company, dated the Closing Date, or Overallotment Closing Date, as the case may be, addressed to the Underwriters Underwriter and in form and substance satisfactory to Underwriters' Underwriter's Counsel, to the effect that:
(i) the Company The Company: (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida with full corporate power and authority to own and operate its jurisdiction, properties and to carry on its business as set forth in the Registration Statement and Prospectus; (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly licensed or qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so licensed or qualified except where failure to be so qualify qualified or licensed would have a no material adverse effect on upon the Company); and (C) to such the best of counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, license or permit which, singly qualification which revocation or in the aggregate, if the subject of an unfavorable decision, ruling or finding, modification would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of have a material adverse effect upon the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) The Registration Statement, each Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form SB-2 have been satisfied by the Company.
(iii) To the best of such counsel's knowledge, except as described in the Prospectus, the Company does not own an equity interest of a character required to be disclosed in the Registration Statement in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) To the best of such counsel's knowledge, the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under the caption "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The SecuritiesShares, Underwriter's Purchase Option and all other securities issued the Underwriter's Option Shares conform or issuable by the Company, upon issuance will conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and all shares of capital stock are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the any statutory tax, or to our knowledge, any other preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder are not and will not hereunder, the Underwriter's Purchase Option to be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of sold by the Company or, to such counselunder the Underwriter's knowledge, agreement, document or instrument, Purchase Option Agreement and Underwriter's Option Shares have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform or upon issuance will conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be are not, subject to any liability under the laws statutory, or to our knowledge, any other preemptive or other similar rights of any stockholder of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly takenCompany; and that the certificates representing the Securities Shares, Underwriter's Purchase Option and Underwriter's Option Shares are in due and proper legal form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities Shares to be sold by the CompanyUnderwriter against payment therefor as provided for in this Agreement, the Underwriters and Underwriter (assuming they are bona fide purchasers within the holders meaning of the Representative's Warrant, as the case may be, Uniform Commercial Code) will acquire good and marketable title to the Securities Shares, free and clear of any pledgeall liens, lienencumbrances, charge, claim, encumbrance, pledgeequities, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyinterests and claims.
(ivv) the The Registration Statement is has been declared effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to To the best of such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against SB-2 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementRegulations;
(vii) the Company has full legal right, power and authority to enter into this This Agreement and the RepresentativeUnderwriter's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Purchase Option Agreement and the Representative's Warrant have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and the Representative Warrant, assuming due authorization, execution and delivery by that each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes is a legal, valid and binding agreement of the Company Underwriter, as the case may be, constitutes a legally valid and binding agreement of the Company, enforceable as against the Company in accordance with its their respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy). Notwithstanding any provision contained herein to the contrary, we express no opinion as to: (i) the enforceability of any provision which would in effect limit any person's right to compete; (ii) any provision that restricts or enlarges the survival of representations, warranties or other agreements; (iii) the enforceability of choice of law or venue provisions; (iv) restrictions on access to legal or equitable redress; (v) enforceability of arbitration provisions; and neither (vi) the Company's limitation of granting of specified types of damages.
(viii) Neither the execution or delivery by the Company of this Agreement and of or the RepresentativeUnderwriter's Warrant, Purchase Option Agreement nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, nor the issuance of the Securities pursuant to this Agreement, to our knowledge, conflicts with or will conflict with or results or will result in any material breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company except to the extent such event will not have a material adverse effect upon the Company pursuant to the terms of, (A) the certificate Articles of incorporation Incorporation or by-laws Bylaws of the Company, (B) to the best knowledge of such counsel, any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument that is material to the Company to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be are subject, or any indebtedness, or (C) to the best knowledge of such counsel, and except to the extent it would not have a material adverse effect on the Company, any statute, judgment, decree, order, rule or regulation applicable to the Company of or any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreignbody, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counselUnderwriter's knowledgePurchase Option Agreement by the Company, and the properties and business taking of any action by the Company conform to the description thereof contained in the Registration Statement and the Prospectuscontemplated hereby or thereby, which has not been obtained;
(x) Except as described in the Prospectus, to the best knowledge of such counsel's knowledge, the Company is not in breach of, or in default under, any material term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which any of the property or assets (tangible or intangible) of any of the Company iis subject or affected; and the Company is not in violation of any material term or provision of its Articles of Incorporation or Bylaws or, to the best knowledge of such counsel, in violation of any material franchise, license, permit, or in violation of any judgment, decree, order, statute, rule or regulation material to the Company business;
(xi) The statements in the Prospectus under the captions "THE COMPANY," "BUSINESS," "MANAGEMENT," "PRINCIPAL STOCKHOLDERS," "CERTAIN TRANSACTIONS," "DESCRIPTION OF CAPITAL STOCK," and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respects;
Appears in 1 contract
Sources: Underwriting Agreement (Frost Hanna Capital Group Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be to purchase the Shares are subject to the continuing accuracy accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of all representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Datecontained herein, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants agreements and obligations hereunder and to the following further additional conditions:
(a) The If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or 164(b) under the Securities Act); the Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, remain effective; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon thereof, any Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the 462 Registration Statement, or any amendment thereto, contains nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an untrue statement order shall have been initiated or threatened; any request of fact which, the Commission for additional information (to be included in the Representative's opinionRegistration Statement, is materialthe Time of Sale Disclosure Package, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, any Issuer Free Writing Prospectus or any supplement thereto, contains an untrue statement of fact which, in otherwise) shall have been complied with to the Representative's opinion’s satisfaction.
(b) On the Closing Date, is materialthe Shares shall have been approved for listing on the NYSE MKT, or omits subject to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light official notice of the circumstances under which they were made, not misleadingissuance.
(c) Prior to or on the Closing Date, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(d) On the Closing Date, there shall have been furnished to the Representative an opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, each dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative.
(e) On the date hereof, the Representative shall have received a letter from ▇▇▇▇▇▇ LLP, addressed to the Representative and dated the date hereof, confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and confirming, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters reasonably requested by the Representative.
(f) On the Closing Date, the Representative shall have received a letter (the “Bring-down Letter”) from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇ LLP, addressed to the Representative and dated the Closing Date, confirming that, as of the date of such Bring-down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Disclosure Package, as of a date not more than five days prior to the date of such Bring-down Letter), the conclusions and findings of said firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative on the date hereof pursuant to paragraph (f) of this Section 6.
(g) At the time of the execution of this Agreement and at the Closing Date or the applicable Option Closing Date, as the case may be, the Representative shall have received a certificate, addressed to the Underwriters Representative and dated as of such date, of the Chief Financial Officer of the Company, in form and substance satisfactory to Underwriters' Counselthe Representatives, substantially to the effect set forth in Exhibit B hereto.
(h) On the Closing Date, there shall have been furnished to the Representative a certificate, dated the Closing Date and addressed to the Representative, signed by the chief executive officer of the Company and the principal financial or accounting officer of the Company, in their capacity as officers of the Company, to the effect that:
(i) The representations and warranties of the Company (A) has been duly organized in this Agreement that are qualified by materiality or by reference to any Material Adverse Effect are true and is validly existing as a corporation correct in good standing under the laws of its jurisdictionall respects, and (B) has all requisite corporate power other representations and authoritywarranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of the Closing Date, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct complied in all material respects with all the agreements and do not omit satisfied all the conditions on its part to state a fact necessary be performed or satisfied at or prior to make the statements contained therein not misleading in light of the circumstances in which they were made.Closing Date;
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust No stop order or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with order (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending any part thereof or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed suspending the qualification of trust, voting trust agreement, stockholders agreement, note, loan the Shares for offering or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednesssale, or (C) suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any statuteIssuer Free Writing Prospectus, judgmenthas been issued, decreeand, orderto their knowledge, rule no proceeding for that purpose has been instituted or regulation applicable to is contemplated by the Company Commission or any state or regulatory body; and
(iii) There has been no occurrence of any arbitrator, court, regulatory body event resulting or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over reasonably likely to result in a Material Adverse Effect during the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not period from and would not have a material adverse effect on after the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance date of this Agreement and prior to the transactions contemplated hereby;Closing Date.
(ixi) to such counsel's knowledgeOn or before the date hereof, the properties Representative shall have received duly executed “lock-up” agreements, in the form attached hereto as Exhibit A, between the Representative and business each of the Company’s executive officers and directors as set forth on Schedule IV.
(j) The Company conform shall have furnished to the description thereof contained Representative and its counsel such additional documents, certificates and evidence as the Representative or its counsel may have reasonably requested. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Registration Statement and the Prospectus;
(x) Representative by written notice to such counsel's knowledge, the Company is not at any time at or prior to the Closing Date specifying in breach ofreasonable detail the reason for such termination, or in default under, any term or provision and such termination shall be without liability of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or party to any other agreement or instrument evidencing an obligation for borrowed moneyparty, or except that Section 5(a)(vii), Section 8 and Section 9 shall survive any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company isuch termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters hereunder Underwriter to sell the Shares on a best efforts basis as provided herein shall be subject to the continuing accuracy of the representations and warranties of the Company herein Company, as of the date hereof and as of the Closing Date and each Option Closing Datehereof, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder, and to the satisfaction of the following further additional conditions:
(a) The Subsequent to the Effective Date and prior to termination of the offering, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the Company's condition (financial or otherwise), earnings, operations, properties, business or business prospects from that set forth in the Registration Statement which or Prospectus, and which, in the Underwriter's sole judgment, is material and adverse and that makes it, in the Underwriter's sole judgment, impracticable or inadvisable to proceed with the offering of the Shares as contemplated by the Prospectus and this Agreement.
(b) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the registration, authorization, issue, sale and delivery of the Shares shall be have been reasonably satisfactory to Underwriter's counsel, and Underwriter's counsel shall have been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the matters referred to in this Section.
(c) Upon execution of this Agreement, the Underwriter shall have received the opinion of Dorsey & Whitney LLP, counsel for the Company, dated as of the date o▇ ▇▇▇▇ Ag▇▇▇▇▇▇▇, satisfactory in form and substance satisfactory to the Representative Underwriter and Underwriter's Counselcounsel, shall have become effective not later than 12:00 p.m., New York time, on to the date effect that:
(i) The Company has been duly incorporated and is validly existing as a cooperative in good standing under the laws of the jurisdiction of its incorporation.
(ii) The Shares to be issued by the Company pursuant to the terms of this Agreement or such later date and time as shall be consented to in writing by the Representative, have been duly authorized and, at Closing Date upon issuance and each Option Closing Datedelivery against payment therefor will be duly and validly issued and fully paid and non-assessable.
(iii) The Company has the requisite power and authority to issue, if anysell and deliver the Shares to be issued and sold by it.
(iv) The Registration Statement has become effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement shall have has been issued and no proceedings proceeding for that purpose shall have has been instituted or shall be is pending or contemplated by threatened under the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Securities Act.
(v) The Registration Statement pursuant to such Rule 430A shall have been transmitted to and the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time periodProspectus, and prior each amendment thereof or supplement thereto (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to Closing Date the Company shall have provided evidence satisfactory which such counsel need express no opinion), comply as to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective form in accordance all material respects with the requirements of Rule 497 of the Securities Act and the Rules and Regulations.
(bvi) The Representative shall A statement of fact (but not have advised an opinion) that, on the basis of information obtained as a result of discussions and meetings with directors, officers and other employees and Underwriters of the Company, discussions with the independent public accountants for the Company in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement, or Statement and any amendment theretothereof, contains an at the time it became effective and at all times subsequent thereto up to the date of this Agreement, contained any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary in order to make the statements therein not misleading, or that the Prospectus, and any amendment or any supplement thereto, contains an at the first date of its issuance, contained any untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may further state that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and related schedules and other financial, numerical, statistical and accounting data contained or omitted from the Registration Statement and any amendment or supplement thereto and the Prospectus. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the state of Minnesota upon opinions of local counsel, and, as to questions of fact, upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state the extent of such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Underwriter and to Underwriter's counsel.
(cd) On or prior to the Closing Date, the Representative The Underwriter shall have received from Underwriters' CounselBriggs and Morgan, such opinion or opinions Professional Association, Underwriter's counsel, s▇▇▇ ▇▇inion ▇▇ ▇▇inions as the Underwriter may reasonably require, dated as of the date of this Agreement, which are satisfactory in form and substance to the Underwriter, with respect to the organization sufficiency of the Company, the validity of the Securities, the Registration Statement, the Prospectus corporate proceedings and other related legal matters as relating to this Agreement and the Representatives may request transactions contemplated hereby, and Underwriters' Counsel the Company shall have received furnished to Underwriter's counsel such papers and information documents as they request to enable them it may have requested for the purpose of enabling it to pass upon such matters. In connection with such opinion, as to matters of fact relevant to conclusions of law, Underwriter's counsel may rely, to the extent that it deems proper, upon representations or certificates of public officials and of responsible officers of the Company.
(de) At Closing Datethe time of execution of this Agreement, the Underwriters Underwriter shall have received from the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇yCompany a certificate, dated the Closing Datedate of such execution, addressed to of the Underwriters principal executive officer and in form and substance satisfactory to Underwriters' Counselthe principal financial or accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company (A) has been duly organized in this Agreement are true and is validly existing correct as a corporation in good standing under if made on and as of the laws date of its jurisdictionthe certificate, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating complied with all the agreements and satisfied all the conditions on its part to the revocation be performed or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.satisfied under this Agreement; and
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust No stop order or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has or any amendment thereof or the qualification of the Shares for offering or sale have been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectusor, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's their knowledge, (A) there are no agreements, contracts or other documents required contemplated by the Acts Commission or any state or regulatory body.
(f) Subsequent to be described the respective dates as of which information is given in the Registration Statement and the Prospectus and filed as exhibits to Prospectus, the Registration Statement other than those described Company has not incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactions, not in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits theretoordinary course of business consistent with past practice, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pendinghas not been any change in the capital stock, or threatenedany material increase in the short-term debt or long-term debt, against or affecting in the Company before any court issuance of options, warrants, convertible securities or arbitrator or governmental bodyother rights to purchase the capital stock, agency or official (of the Company, or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change or any development involving a prospective material adverse change (whether or not arising in the conditionordinary course of business) in the general affairs, condition (financial or otherwise), or the earningsbusiness, positionkey personnel, property, prospects, stockholders' equity, value, operation, properties, business net worth or results of operations of the Company, which could materially adversely affect .
(g) Dorsey & Whitney LLP shall deliver to the present or prospective ability Underwriter a Blue Sky Memo▇▇▇▇▇▇ reasonably satisfactory to the Underwriter confirming that all requisite actions for the offer and sale of the Shares in all jurisdictions requested by the Underwriter have been taken. The Underwriter may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Any such cancellation shall be without liability of the Underwriter to the Company to perform and shall not relieve the Company of its obligations under this Agreement or which in any manner draws into question the validity or enforceability Section 4(a) hereof. Notice of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may cancellation shall be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable given to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Companyas specified in Section II.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Sources: Underwriting Agreement (Cenex Harvest States Cooperatives)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the each Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; , and the performance by the Company on and as of the each Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 5:00 p.m. New York time, on the date subsequent to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Representative. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretothereof, contains shall not contain an untrue statement of fact which, in the Representative's opinion, is materiala material fact, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization At each of the Company, the validity of the Securities, the Registration Statement, the Prospectus Effective Date and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At each Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Blau, Kramer, Wactlar & VeithLieberman, P.C. (the "Firm") counsel to the CComp▇▇▇, d▇▇▇▇ ▇he ▇▇▇▇▇y, dated the ▇▇ve D▇▇▇ ▇▇▇ ▇ach Closing Date, respectively, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselIAR, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its jurisdictionincorporation; (B) is duly qualified and licensed for the transaction of business and in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property and assets or the conduct of its Business makes such qualification necessary except where the failure to be so qualified does not now have and will not in the future have a Material Adverse Effect; and (BC) has all requisite corporate power and authority, and has obtained any and all material authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingbodies, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the CompanyBusiness. The disclosures in the Registration Statement concerning the effects of federalFederal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct accurate in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Firm has not been engaged to such counsel's knowledge, perform legal services in connection with any transaction whereby the Company does not own would acquire an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus (and any amendment or supplement thereto, ) under the heading "Capitalization", and, to such counsel's knowledge, after due inquiry" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued authorized; all outstanding shares of Common Stock have been fully paid for and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or and of the Representative's WarrantWarrant Agreement, will be validly issued, issued fully paid and non-assessable and non- assessable. The Securities conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all . All corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; . The Representative's Securities constitute valid and binding obligations of the certificates representing Company to issue and sell, upon exercise thereof and payment therefor, the Securities are in due number and proper formtype of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Warrant Agreement and the Representative's Warrant RPO of the Securities to be sold by the Companyand Representative's Securities, as applicable, the Underwriters will acquire title to the Firm Securities, and the holders of Representative will acquire title to the Representative's WarrantSecurities, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, ; (B) the purchase by the Underwriters and the Representative of the Firm Securities and the Representative's Securities, respectively, from the Company, ; (C) the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the RPO or (D) resales of the Firm Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is has become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, and to such counsel's knowledge, after due inquiry, knowledge no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or preventing the use of the preliminary prospectus or any part of any thereof has been issued and no proceedings proceeding for that purpose have has been instituted or are pending is pending, or is threatened or contemplated under the ActsAct;
(v) each counsel does not know of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and or to be filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copiesnot so described or filed; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate and fairly present in all material respects and fairly represent the information required to be shown by Form N-5presented therein; (C) to counsel's knowledge there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental governmental, legal or other proceeding (including, without limitation, limitation those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)Company, or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed. No Federal, (2) questions the validity of the capital stock of the Company state or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no local statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viivi) the Company has full legal right, corporate power and authority to enter into each of this Agreement Agreement, the RPO and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for contemplated therein; and each of this Agreement Agreement, the RPO and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by or on behalf of the Company. This Agreement Each of this Agreement, the RPO and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights generally and the application of general equitable principles in any action, legal or equitable, and except as rights to those provisions relating to indemnity or contribution may be limited by applicable lawas to which no opinion is expressed), and neither . None of the Company's execution execution, delivery or delivery performance of this Agreement and of Agreement, the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinRPO, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or Business will result in any breach or violation of any of the terms or provisions of, or conflicts or will conflict with or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, ; (B) any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders shareholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or ; (C) any Federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflictsor (D) have any Material Adverse Effect on any permit, breachescertification, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consentregistration, approval, authorization consent, license or order, franchise necessary for the Company to own or lease and no filing with, operate any court, regulatory body, government agency of its properties and to conduct its Business or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance ability of the Securities pursuant Company to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated herebymake use thereof;
(ixvii) the Firm has not been engaged to such counsel's knowledgeprovide legal services with respect to, nor does the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach Firm have any knowledge of, any breach of or in a default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholdersshareholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an any obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of the Company is subject or affected. The Company is not in violation of any term or provision of its certificate of incorporation or by-laws or, to counsel's knowledge in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(viii) the statements in the Prospectus under the headings "THE COMPANY", "BUSINESS", "MANAGEMENT," "PRINCIPAL STOCKHOLDERS, "SELLING SECURITYHOLDERS", "CERTAIN TRANSACTIONS", "DESCRIPTION OF SECURITIES", and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, except for any of the foregoing opined upon to the underwriters by counsel to the Company iother than Blau, Kramer, Wactlar & Lieberman, P.C.; are correct ▇▇ ▇▇▇ material res▇▇▇▇▇;
(ix) the Firm Securities have been accepted for quotation on the OTC Bulletin Board;
(x) to counsel's knowledge, there are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder's or origination fee with respect to the sale of the Securities hereunder or financial consulting arrangement or any other arrangements, agreements, understandings, payments or issuances that may affect the Underwriters' compensation, as determined by the NASD;
(xi) to counsel's knowledge, the Company is not party to any ERISA plans or defined benefit plan, as defined in Section 3(35) of ERISA; and
(xii) The Securities, when issued in accordance with the terms of this Agreement, will be duly and validly issued. The stock certificates and warrants comprising the Securities are in due and proper legal form. To the knowledge of such counsel and except as disclosed in the Prospectus, no holder of any of the Company's securities has any rights, "demand," "piggyback" or otherwise, to have such securities registered or to demand the filing of a registration statement. Except as set forth in the Prospectus, there are no preemptive or other rights to subscribe for or purchase, or any restriction upon the voting or transfer of, any shares of Common Stock, under the Certificate of Incorporation or By-Laws of the Company or under the General Corporation Law of the State of Delaware, or, to the knowledge of such counsel, under any agreement or other outstanding instrument to which the Company is a party or by which it is bound.
(xiii) To such counsel's knowledge, no approval or consent of any court, board or governmental agency, instrumentality or authority of the United States or of any state having jurisdiction or authority over the Company or of any other third party, not duly obtained (other than any approval or consent required under any state securities or Blue Sky laws) is required for the valid authorization, issuance, sale and delivery of the Securities and the consummation of the transactions contemplated by this Agreement, the Warrant Agreement, the RPO or the Offering Documents.
(xiv) To such counsel's knowledge, there are no claims, actions, suits, hearings, investigations, inquiries or proceedings of any kind or nature, before or by any court, governmental authority, tribunal or instrumentality pending or threatened against the Company or involving the properties of the Company which could materially and adversely affect the Business of the Company, or which would reasonably be expected to materially adversely affect the transactions or other acts contemplated by this Agreement, the Warrant Agreement, the RPO or the validity or enforceability of such agreements.
(xv) To such counsel's knowledge, there are no material licenses, permits, certificates, registrations, approvals or consents of any governmental agency, commission, board, instrumentality or department that are required to be obtained by the Company in order to conduct its current or presently proposed business as described in the Offering Documents which have not been so obtained and the failure to so obtain which would have a Material Adverse Effect.
(xvi) To such counsel's knowledge and except as disclosed in the Prospectus, the issuance of the Securities will not give any holder of any of the Company's outstanding securities or rights to purchase shares of the Company's Common Stock, the right to purchase any additional shares of Common Stock and/or the right to purchase shares at a reduced price. The opinion shall also state that the Registration Statement, the Prospectus and each amendment thereto or supplement thereof (except for the financial statements and schedules and other financial information included therein, as to which such counsel will express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations. Such counsel's opinion shall also include a statement to the effect that it has participated in conferences with officers and other representatives of the Company representatives of the independent public acc
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and each Selling Securityholder contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's and each Selling Securityholder's officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, Selling Securityholder of its covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such mattersor otherwise).
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company and each of the subsidiaries listed on Schedule 3 hereto (Athe "Subsidiaries") has have been duly organized incorporated and is are validly existing as a corporation corporations in good standing under the laws of its jurisdictiontheir respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company and the Subsidiaries, taken as a whole;
(Bii) has all requisite the Company and each of the Subsidiaries have corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its their respective properties and conduct its business their respective businesses as described in the Registration Statement and the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, and the Company has not received any notice of proceedings relating corporate power to enter into this Agreement and to carry out all the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state terms and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit provisions hereof to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entitybe carried out by it;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except for directors' qualifying shares and as otherwise set forth in the Prospectus, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims;
(iv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, Prospectus under "Capitalization" and under ", and, to such counsel's knowledge, after due inquiry, Description of Capital Stock--Common Stock" and "--Preferred Stock;" all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect theretononassessable, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none knowledge of such counsel have been issued in compliance with all applicable federal and state securities laws and were not issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive rights or other similar rights of any stockholder contained in to subscribe for or purchase securities; the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, Firm Securities have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable and conform nonassessable; the Securities have been duly included for trading on the Nasdaq National Market; to the description thereof contained knowledge of such Counsel, except for such rights as have been waived as of the date hereof, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities; and, assuming that the Company has sent written notice to all holders of securities of the Company who have the right to register the offer or sale of any securities owned by such holders under the Act in connection with the public
(v) the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the holders thereof will not be subject to any liability statements set forth under the laws heading "Business and Properties--Government Regulation and Environmental" in the Prospectus, insofar as such statements constitute a summary of the State legal matters, documents or proceedings referred to therein, provide a fair summary in all material respects of New York as currently in effect solely as such holders; legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(vii) to such counsel's knowledge (A) no legal or governmental proceedings are pending to which the Company or any of the Subsidiaries is a party or to which the property of the Company or any of the Subsidiaries is subject that are required to be taken for described in the authorizationRegistration Statement or the Prospectus and are not described therein, issue and no such proceedings have been threatened against the Company or any of the Subsidiaries or with respect to any of their respective properties and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) the issuance, offering and sale of the Securities has been duly and validly taken; and to the certificates representing Underwriters by the Securities are in due and proper form. Upon the issuance and delivery Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the Representative's Warrant consummation of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with transactions herein contemplated do not (A) require the issuance by the Company consent, approval, authorization, registration or qualification of the Securitiesor with any governmental authority, or (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company conflict with or result in a breach or violation of any of its obligations under this Agreementthe terms and provisions of, or (D) resales constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company or any of the Securities in connection with Subsidiaries is a party or by which the distribution contemplated hereby.Company or any of the Subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of the Subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or the Subsidiaries, except that no opinion is expressed as to state securities or blue sky laws for purposes of this subparagraph;
(ivix) the Registration Statement is effective under the Acts, and, if applicable, Act; any required filing of all pricing information the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and 424(b) has been timely made in the appropriate form under Rule 430A, manner and within the time period required by Rules 434 and 424(b); and, to the knowledge of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any amendment thereto has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or are contemplated under by the Acts;Commission; and
(vx) each of the Preliminary Prospectus, the Registration StatementStatement originally filed with respect to the Securities and each amendment thereto, any Rule 462(b) Registration Statement and the Prospectus and any amendments or supplements thereto (in each case, other than the financial statements and other financial and statistical data included information contained therein, as to which such counsel need express no opinion need be renderedopinion) comply as to form in all material respects with the applicable requirements of the Acts Act and the Rules rules and Regulationsregulations of the Commission thereunder.
(vixi) if the Company elects to rely on Rule 434, the Prospectus is not "materially different," as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time of its effectiveness or an effective post-effective amendment thereto (including such information that is permitted to be omitted pursuant to Rule 430A). Such counsel shall also state that they have no reason to believe that the Registration Statement (except for the financial statements and other financial and reserve information included in the Registration Statement, as to which they have not been asked to comment), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except as indicated above), as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering any such opinion, such counsel may rely, as to matters of fact, to the best extent such counsel deems proper, on certificates of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by responsible officers of the Acts Company and public officials. References to be described in the Registration Statement and the Prospectus and filed as exhibits to in this paragraph (b) shall include any amendment or supplement thereto at the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon date of such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Companyopinion.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to the continuing accuracy each of the representations following terms and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Verbal Notification from the Company that the Registration Statement which became effective on the Effective Date shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus,” as defined in Rule 405 of the Rules, shall have been or shall be in form effect and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or shall be pending before or contemplated threatened by the Commission Commission, and any request requests for additional information on the part of the Commission for additional information to be included in the Registration Statement or the Prospectus shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations 424(b) within the prescribed time period, period and prior to Closing Date the Company shall have provided evidence reasonably satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A.
(c) The representations and warranties of the Rules Company contained in this Agreement and Regulationsin the certificates delivered pursuant to Section 4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by them at or before such Closing Date.
(bd) The Representative shall not have advised received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company that to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed all covenants and agreements and satisfied all conditions contained herein; (iii) they have examined the Registration Statement, or the Prospectus, the General Disclosure Package, and any amendment theretoindividual Issuer Free Writing Prospectuses and, contains an in their opinion (A) as of the date of this Agreement, which is most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact which, in the Representative's opinion, is material, or omits and did not omit to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
, and (cB) On since the Applicable Time no event has occurred which should have been set forth in a supplement or prior an amendment to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the General Disclosure Package or the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company that has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holdersso disclosed; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's their knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;Securities Act.
(ve) each The Representative shall have received, (i) simultaneously with the execution of this Agreement a signed letter from Ernst & Young LLP addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and other certain financial information contained in the Statutory Prospectus, and statistical data included therein(ii) on each Closing Date, as a signed letter from Ernst & Young LLP addressed to which no opinion need be rendered) comply as the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to form in all material respects with the requirements Representative containing statements and information of the Acts and the Rules and Regulations.
(vi) type ordinarily included in accountants’ “comfort letters” to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, underwriters with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid financial statements and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof certain financial information contained in the Registration Statement and the Prospectus;.
(xf) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇ Godward Kronish LLP, counsel for the Company, an opinion, addressed to the Representative and dated such counsel's knowledgeClosing Date (with appropriate modifications for any opinion delivered on any subsequent Closing Date), in substantially the form attached hereto as Exhibit B.
(g) The Representative shall have received on each Closing Date from Cozen ▇’▇▇▇▇▇▇, special intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in substantially the form attached hereto as Exhibit C.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative, and their counsel and the Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, a favorable opinion, addressed to the Representative and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, and the Company is not in breach of, or in default under, any term or provision shall have furnished to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument enabling them to which the Company is a party or by which any pass upon such matters.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each person listed on Schedule II hereto.
(j) The Shares shall have been approved for listing on the Nasdaq Global Market, subject only to official notice of issuance.
(k) The Company may shall have furnished or caused to be bound furnished to the Representative such further certificates or to which documents as the property or assets (tangible or intangible) of any of the Company iRepresentative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Jack▇▇▇ & Veith▇alk▇▇ ▇▇▇ ("Jack▇▇▇ & ▇alk▇▇"), counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
: [(i) the Company THE COMPANY (A) has been HAS BEEN DULY ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION,] (B) is duly organized qualified and is validly existing as a corporation licensed and in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no each jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation its ownership or modification leasing of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, properties or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any character of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to operations requires such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iqualification or
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company and each of the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company Company, Safeguard and Radnor and of each of the ▇▇▇▇▇▇▇ Selling Stockholders made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company Company, Radnor, the ▇▇▇▇▇▇▇ Selling Stockholders and Safeguard on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m., New York time, on the first full business day next following the date of this Agreement hereof or such later date and time as shall be have been consented to in writing by the RepresentativeUnderwriters. If required, andthe Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Rules and Regulations. If required, at Closing Date and each Option Closing Date, if any, no any amendment or supplement to the Prospectus shall have been filed in accordance with Rule 424(c) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, any of the Selling Stockholders, or the Underwriters, shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Underwriters and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegistration Statement, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Underwriters shall not have advised the Company that or the Selling Stockholders that, in the opinion of the Underwriters or Underwriters' Counsel, (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Prospectus, or any amendment or supplement thereto, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and request. Underwriters' Counsel shall have received from the Company, Radnor, the ▇▇▇▇▇▇▇ Selling Stockholders and Safeguard such papers and information as they may request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, or covenants of the Company, Radnor, the ▇▇▇▇▇▇▇ Selling Stockholders or Safeguard contained herein.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated counsel to the Company and the Selling Stockholders an opinion, on or prior to the date Rights certificates and Prospectuses are first mailed to Safeguard Shareholders and on the Closing Date, addressed to dated the Underwriters respective dates thereof and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the The Company (A) has been and each of its subsidiaries are corporations duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of their respective jurisdictions of organization and are duly qualified to transact business as foreign corporations and are in good standing in each jurisdiction in which the Company has represented to such counsel that they conduct business;
(ii) The Company and each of its jurisdiction, and (B) has subsidiaries have all requisite corporate power and authorityauthority necessary or required to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus;
(iii) The Company has all requisite power and authority (corporate and other) to enter into this Agreement and the Rights Agent Agreement and to consummate the transactions provided for herein and therein; and this Agreement and the Rights Agent Agreement have each been duly authorized, executed and delivered by the Company. Each of this Agreement, assuming due authorization, execution and delivery by the Underwriters, and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other than the Company and the Selling Stockholders constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or equity, and except as rights to indemnity and contribution hereunder may be limited by applicable law, statutory duties or public policy. The Company's execution and delivery of this Agreement and the Rights Agent Agreement, its performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby do not and will not 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 liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or equities of any kind whatsoever upon, any right, property or asset (tangible or intangible) of the Company or any of its subsidiaries pursuant to the terms of (A) the charter or bylaws, each as amended through the date of the opinion, of the Company and each of its subsidiaries, (B) any material lease, permit, license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company or any of its subsidiaries is a party or by which any of them is or may be bound or to which any of their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, except that such counsel need not express an opinion with respect to any violation based upon any covenant of a financial or numerical nature or that requires arithmetic computation and such counsel has obtained not otherwise known of or had reason to expect the occurrence of such default, or (C) any and all authorizationsstatute, approvalsrule or regulation or, ordersto the knowledge of Company counsel, licensesany judgment, certificatesdecree or order applicable to the Company or any of its subsidiaries or any of their respective activities or properties adopted or issued by an arbitrator, franchises and permits of and from all court, regulatory body or administrative agency or other governmental agency or regulatory officials and bodies body (including, without limitation, including those having jurisdiction over environmental or similar matters), materially necessary to own domestic or lease its properties and conduct its business as described in the Prospectus; foreign, having jurisdiction over the Company is not qualified or any of its subsidiaries or any of their respective activities or properties (other than such as a foreign corporation may be required under state securities or "Blue Sky" laws and such as may be required by the by-laws and rules of the NASD in any jurisdiction connection with the purchase and distribution of the Shares by the Underwriters);
(to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorizationiv) No consent, approval, order, license, certificate, franchiseauthorization or order of, or permit whichfiling with, singly any governmental agency or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", andbody or, to such counsel's knowledge, after due inquiryany court is required in connection with the issuance of the shares of Common Stock to be sold by the Company, the Company's performance of its obligations hereunder, the Offering, or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect. Upon the effectiveness of the Registration Statement, the Common Stock will be registered pursuant to Section 12(g) of the Exchange Act, and will be included in the Nasdaq National Market;
(v) At the date or dates indicated in the Prospectus, the authorized, issued and outstanding capital stock of the Company was as set forth therein, and conformed as to legal matters, to the extent that it constitutes matters of law or legal conclusions, to the description thereof contained therein under the captions "CAPITALIZATION" and "DESCRIPTION OF CAPITAL STOCK." All of the issued shares of Common Stock of the Company (including the Shares sold by the Selling Stockholders) have been duly authorized and validly issued, and are fully paid and non-assessable; the holders thereof are not subject to personal liabilities solely by reason of holding such shares; and none of such shares have been issued in violation of the preemptive rights of any security holders of the Company known to Company counsel. The Shares to be sold by the Company have been duly authorized and, when paid for in accordance herewith, will be validly issued, fully paid and non-assessable, and with no personal liability resulting solely from the ownership thereof. Upon the issuance and delivery pursuant to this Agreement of the Shares to be sold by the Company, assuming the Underwriters do not have knowledge of any Adverse Claim, the Underwriters will acquire good and marketable title to such Shares free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or like equities of any kind whatsoever. There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Articles of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party or of which it has knowledge, and the Shares to be sold by the Company are not subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Except as described in the Prospectus with respect to stock options (and all other securities issued or shares issuable upon exercise thereof) that may be registered by the CompanyCompany in a registration statement on Form S-8, conform in all material respects to all statements with respect thereto contained in no holders of any securities of the Registration Statement and Company or of any options, warrants or other convertible or exchangeable securities of the Prospectus. All issued and outstanding Company which are exercisable for or convertible or exchangeable for securities of the Company have the right (which has not been duly authorized and validly waived) to include any securities issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of Registration Statement or any registration statement to be filed by the Company or, within the period commencing on the date the Registration Statement is declared effective by the Commission and ending 180 days after the Expiration Date or to require the Company to file a registration statement under the Act during such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with period. Based on the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform form of specimen certificate filed as an exhibit to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationRegistration Statement, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities Shares are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivvi) the The Registration Statement is has become effective under the Acts, and, if applicable, Act. Any required filing of all pricing information the Prospectus pursuant to Rule 424(b) and 430A(a)(3) of the Rules and Regulations has been timely made in accordance with the appropriate form under Rule 430A, and, to time period required thereby. To such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under threatened, by the ActsCommission;
(vvii) each of At the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in time the Registration Statement and was declared effective by the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporatedCommission, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements, and notes thereto, the financial schedules, and the other financial and statistical data included in the Registration Statement or amendment thereto the Prospectus or omitted therefrom, as to which such counsel need express no opinion) complied as to form in all material -41- respects with the requirements of the Act and the Rules and Regulations;
(viii) Such counsel has reviewed all contracts and other documents referred to which in the Company is a party or by which it is boundRegistration Statement and the Prospectus, including any document to which and the Company is a party or by which it is bound, incorporated by reference into summaries of and other disclosures regarding such contracts and other documents included in the Registration Statement and the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent present the information required to be shown by Form N-5; with respect thereto. To such counsel's knowledge, there are no contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that were not filed or disclosed as required;
(Cix) To such counsel's knowledge, there is not pending or threatened or contemplated against the Company Company, or involving the properties or business of the Company, any action, arbitration, suit, proceeding, inquiry, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, including those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against that (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1A) is required to be disclosed in the Registration Statement which and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed, (2B) questions the validity of the capital stock of the Company or the validity or enforceability of this Agreement or Agreement, (C) questions the Representative's Warrant or validity of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; this Agreement, or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect effect the present or prospective ability of the Company to perform its obligations under this Agreement or which result in any manner draws into question the validity or enforceability of this Agreementa Material Adverse Effect;
(viix) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act, nor, by receipt of the proceeds from its sale by it of the Shares pursuant to this Agreement, will the Company has full legal rightbecome or be deemed to be an "investment company" under such Act;
(xi) This Agreement, power and authority to enter into this Agreement the Other Purchasers Standby Purchase Agreements and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Rights Agent Agreement and the Representative's Warrant have each has been duly authorized, executed and delivered by each of the CompanySelling Stockholders. This Agreement and the Representative WarrantEach of this Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's WarrantUnderwriters, the receipt of an order or exemptive relief under Other Purchasers Standby Purchase Agreements, assuming due authorization, execution and delivery by the 1940 Actparties thereto other than the Selling Stockholders, and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other than the Selling Stockholders and the Company, constitutes a the legal, valid and binding agreement obligation of each of the Company ▇▇▇▇▇▇▇ Selling Stockholders, enforceable against each of the Company ▇▇▇▇▇▇▇ Selling Stockholders in accordance with its terms (terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium moratorium, arrangement or other similar laws of general application relating to or affecting enforcement of creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and the application reasonableness) whether applied by a court of equitable principles in any action, legal law or equitableequity, and except as rights to indemnity or and contribution hereunder may be limited by applicable law), statutory duties or public policy. Each of the ▇▇▇▇▇▇▇ Selling Stockholders' execution and neither the Company's execution or delivery of this Agreement Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, each of the Representative's Warrant, its ▇▇▇▇▇▇▇ Selling Stockholders' performance of his obligations hereunder and thereunder, its thereunder and the consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, hereby and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which thereby do not and would will not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iconflict wi
Appears in 1 contract
Sources: Standby Underwriting Agreement (Sanchez Computer Associates Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of each of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:00 P.M., New York City time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriter and Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' opinion, is material, material or omits to state a fact which, in the Representative's Underwriters' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date and each Option Closing Date, as the Representative case may be, the Underwriters shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, Company the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Underwriters reasonably may request and Underwriters' Counsel such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, Date and the Option Closing Date the Underwriters shall have received the favorable an opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇ ▇▇▇▇▇▇▇▇▇, Esq., counsel to the Company, dated the Closing Date, or Option Closing Date, as the case may be, addressed to the Underwriters Underwriter and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company The Company: (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the Province of Ontario, Canada with full corporate power and authority to own and operate its jurisdiction, properties and to carry on its business as set forth in the Registration Statement and Prospectus; (B) has all requisite corporate power and authorityto the best knowledge of such counsel, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly registered or qualified as a foreign corporation in any all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so registered or qualified except where failure to register or qualify does not have, singly or in the aggregate, a Material Adverse Effect; and (C) to the best knowledge of such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorizationregistration or qualification.
(ii) The Registration Statement, approvaleach Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements, orderschedules and other financial and statistical data included therein, license, certificate, franchise, or permit which, singly or as to which no opinion need be rendered) comply as to form in all material respects with the aggregate, if requirements of the subject Act and Regulations and the conditions for use of an unfavorable decision, ruling or finding, would materially adversely affect a registration statement on Form SB-2 have been satisfied by the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets Company. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company. The disclosures , representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement concerning the effects of federaland Prospectus, state and local laws, rules and regulations on the Company's business basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective or the Prospectus as currently conducted and as contemplated are correct in all of the date thereof contained any untrue statement of a material respects and do not omit fact or omitted to state a material fact necessary required to be stated therein or to make the statements contained therein not misleading in light of the circumstances in under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Registration Statement or Prospectus or with respect to statements or omissions made therein in reliance upon information furnished in writing to the Company on behalf of any Underwriter expressly for use in the Registration Statement or the Prospectus).
(iiiii) to To the best of such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under "Capitalization"." The Shares, and, to such counsel's knowledge, after due inquiryRedeemable Warrants, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The SecuritiesUnderwriters' Warrants, and all other securities issued or issuable by the Company, Warrant Shares conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect theretothereof, and to counsel's best knowledge, are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; , and none of such securities were issued in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation Company.
(iv) The issuance of the Company orShares, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by Redeemable Warrants and the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, Warrant Shares have been duly authorized and, and when issued, issued and paid for and delivered in accordance with this Agreement and the terms hereof or the Representative's WarrantWarrant Agreement, respectively, will be validly issued, fully paid and non-assessable securities of the Company. The holders of the Securities when issued and conform to the description thereof contained in the Prospectus; the holders thereof paid for, will not be subject to personal liability by reason of being such holders. To the best of such counsel's knowledge, the Securities are not and will not be subject to the preemptive or similar contractual rights of any liability under the laws shareholder of the State of New York as currently in effect solely as such holders; all Company. All corporate action required to be taken for the authorization, issue issuance and sale of the Securities has been duly and validly taken; and the . The certificates representing the Securities Shares and Redeemable Warrants are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(ivv) Based solely on telephonic, verbal confirmation provided to such counsel by the staff of the Commission, the Registration Statement is and all post-effective amendments, if any, have become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each Act; and any required filing of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as pursuant to which no opinion need be renderedRule 424(b) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulationshas been made.
(vi) to To the best of such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against SB-2 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;Regulations.
(vii) This Agreement, the Company has full legal rightUnderwriters' Warrant, power and authority to enter into this Agreement the Warrant Agreement, and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Financial Advisory Agreement and the Representative's Warrant have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and assuming that it is a valid and binding agreement of the Representative WarrantUnderwriters, assuming due authorization, execution and delivery by each other party hereto and, with respect to so as the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actcase may be, constitutes a legal, valid and binding agreement of the Company enforceable as against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), and neither .
(viii) Neither the Company's execution or delivery by the Company of this Agreement and of Agreement, the Representative's Underwriters' Warrant, and the Warrant Agreement, nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, nor the issuance of the securities conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, upon any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate Articles of incorporation or by-laws Incorporation of the Company, or (B) any licenseto the best knowledge of such counsel, contractand except to the extent it would not have a Material Adverse Effect on the Company, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreignbody, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body body, (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement, the Underwriters' Warrant, the Financial Advisory Agreement and the transactions Warrant Agreement by the Company, and the taking of any action by the Company contemplated hereby;hereby or thereby, which has not been obtained.
(ixx) to To the best of such counsel's knowledge, except as described in the properties and business Prospectus, no person, corporation, trust, partnership, association or other entity holding securities of the Company conform has the contractual right to include and/or register any securities of the Company in the Registration Statement, require the Company to file any registration statement or, if filed, to include any security in such registration statement for twelve months from the date hereof.
(xi) After the public offering, the Securities will be eligible for listing on the Nasdaq SmallCap Market. In rendering such opinion such counsel may rely, (A) as to matters involving the application of laws other than the laws of the United States, the corporate laws of the Province of Ontario, Canada and jurisdictions in which they are admitted, to the description thereof contained extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and in substance reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the applicable laws, and (B) as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company; PROVIDED, that copies of any such statements or certificates shall be delivered to Underwriters' Counsel if requested. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and, in their opinion, the Underwriters and they are justified in relying thereon.
(e) At each Option Closing Date, if any, the Underwriters shall have received the an opinion of counsel to the Company, each dated the Option Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel confirming as of Option Closing Date the statements made by such firm, in their opinion, delivered on the Closing Date.
(f) On or prior to each of the Closing Date and the Option Closing Date, Underwriters' Counsel shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in subsection (c) of this SECTION 6, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained.
(g) Prior to the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse change nor development involving a prospective change in the condition, financial or otherwise, prospects or the business activities of the Company, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the Prospectus;
(x) to such counsel's knowledgeordinary course of business, entered into by the Company, from the latest date as of which the financial condition of the Company is set forth in the Registration Statement and Prospectus which is materially adverse to the Company; (iii) the Company shall not be in breach of, or in material default under, under any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed instrument relating to any outstanding indebtedness; (iv) no material amount of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any assets of the Company may be bound shall have been pledged or mortgaged, except as set forth in the Registration Statement and Prospectus; (v) no action, suit or proceeding, at law or in equity, shall have been pending or to which its knowledge threatened against the property Company, or assets (tangible or intangible) of affecting any of its properties or businesses before or by any court or federal, state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the Company ibusiness, operations, prospects or financial condition or income
Appears in 1 contract
Sources: Underwriting Agreement (Rosedale Decorative Products LTD)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form (including the Statement of Eligibility and substance satisfactory to Qualification of the Representative and Underwriter's Counsel, Trustee on Form T-1 (the "Form T-1")) shall have become effective not later than 12:00 5:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement (including the Form T-1) shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Underwriters may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg from Colombo & VeithBonacci, P.C., counsel to the C▇▇▇▇▇y▇, dated the Closing Date, addressed to the Underwriters in the form attached hereto as Exhibit D. In rendering such opinion, such counsel may rely: (A) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance satisfactory to Underwriters' Counsel) of other counsel acceptable to Underwriters' Counsel, to familiar with the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, applicable laws; and (B) has all requisite as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate power existence or good standing of the Company and authoritythe Subsidiaries, provided copies of any such statements or certificates shall be delivered to Underwriters' Counsel if requested. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and has obtained that the Underwriters and they are justified in relying thereon. At each Option Closing Date, if any, the Underwriters shall have received the favorable opinion of Colombo & Bonacci, P.C., counsel to ▇▇▇ ▇▇mpa▇▇, ▇▇ted such Option Closing Date, addressed to the Underwriters and in form consistent with Exhibit D confirming as of such Option Closing Date the statements made by Colombo & Bonacci, P.C. in their ▇▇▇▇▇▇▇ de▇▇▇▇▇▇▇ on the Closing Date.
(e) On or prior to each of the Closing Date and each Option Closing Date, if any, Underwriters' Counsel shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in subsection (c) of this Section 6 or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(f) Prior to each of Closing Date and all authorizationseach Option Closing Date, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies if any: (including, without limitation, those having jurisdiction over environmental or similar matters), i) there shall have been no materially necessary to own or lease its properties and conduct its business as described adverse change nor development involving a prospective change in the condition, financial or otherwise, prospects, stockholders' equity or the business activities of the Company and the Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of the Subsidiaries, from the latest date as of which the financial condition of the Company and the Subsidiaries is not qualified set forth in the Registration Statement and Prospectus which is adverse to the Company and the Subsidiaries taken as a foreign corporation whole; (iii) neither the Company nor any of the Subsidiaries shall be in material default under any jurisdiction provision of any instrument relating to any outstanding indebtedness; (iv) neither the Company nor any of the Subsidiaries shall have issued any securities (other than the Securities or underlying common stock from the exercise of options or warrants) or declared or paid any dividend or made any distribution in respect of its capital stock of any class and there has not been any change in the capital stock, or any change in the debt (long or short term) or liabilities or obligations (contingent or otherwise) of the Company or any of the Subsidiaries, except (x) in connection with the acquisition of assets of the Company through purchase money financing and financing related to such counseltimeshare sales which is secured by timeshare receivables, (y) for debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) for debt for working capital not to exceed $1,500,000 outstanding; (v) no material amount of the assets of the Company or any of the Subsidiaries shall have been pledged or mortgaged other than in the ordinary course of the Company's business, except as set forth in the Registration Statement and Prospectus and except (x) in connection with the acquisition of assets of the Company through purchase money financing and financing related to timeshare sales which is secured by timeshare receivables, (y) for debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) for debt for working capital not to exceed $1,500,000 outstanding; (vi) no action, suit or proceeding, at law or in equity, shall have been pending or, to the best of the Company's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, threatened against the Company has not received or any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchiseSubsidiaries, or permit whichaffecting any of their respective properties or businesses, singly before or in the aggregateby any court or federal, if the subject of state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding, would finding may materially adversely affect the business, operations, conditionprospects, financial condition or otherwise, or the earnings, business affairs or prospects, properties, business or assets income of the Company. The disclosures in Company and the Registration Statement concerning the effects of federalSubsidiaries taken as a whole, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization except as set forth in the Registration Statement and Prospectus; and (vii) no stop order shall have been issued under the Act or, and any amendment or supplement thereto, under "Capitalization", and, with respect to such counsel's knowledge, after due inquirythe qualification of the Trustee, the Trust Indenture Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission or any state regulatory authority.
(g) At each of the Closing Date and each Option Closing Date, if any, the Underwriters shall have received a certificate of the Company is not a party to signed by the principal executive officer and by the chief financial or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by chief accounting officer of the Company, conform in all material respects to all statements with respect thereto contained in dated the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document Closing Date or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantOption Closing Date, as the case may be, will acquire good and marketable title to the Securities free effect that each of such persons has examined the Registration Statement, the Prospectus, this Agreement and clear of any pledgethe Indenture, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever and that:
(except those arising out of acts or claims against i) the Underwriters or the holders representations and warranties of the Representative's Warrant). No transfer tax is payable by or Company in this Agreement and the Indenture are true and correct, as if made on behalf and as of the Underwriters in connection with (A) Closing Date or such Option Closing Date, as the issuance by case may be, and the Company of has complied with all agreements and covenants and satisfied all conditions contained in this Agreement and the SecuritiesIndenture on its part to be performed or satisfied at or prior to the Closing Date or such Option Closing Date, (B) as the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.case may be;
(ivii) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any part thereof or the qualification of the Trustee has been issued issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such person's knowledge after due inquiry, are contemplated or threatened or contemplated under the ActsAct or the Trust Indenture Act;
(viii) the Registration Statement and the Prospectus and, if any, each amendment and each supplement thereto, contain all statements and information required to be included therein, and none of the Preliminary Prospectus, the Registration Statement, the Prospectus or any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and none of the Preliminary Prospectus or any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus: (a) neither the Company nor any of the Subsidiaries has incurred up to and including the Closing Date or the Option Closing Date, as the case may be, other than in the ordinary course of its business, any material liabilities or obligations, direct or contingent (except as otherwise contemplated in subclause (d) of this clause (iv)); (b) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (c) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business (except as otherwise contemplated in subclause (d) of this clause (iv)); (d) there has not been any material change in the capital stock or long-term debt or any increase in the short-term borrowings (other than any increase in the short-term borrowings in the ordinary course of business) of the Company or any of the Subsidiaries (except for (x) financing in connection with the acquisition of assets of the Company through purchase money financing and financing related to timeshare sales which is secured by timeshare receivables, (y) debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) debt for working capital not to exceed $1,500,000 outstanding); (e) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not insured; (f) there is no material litigation which is pending or, to the best of the Company's knowledge, threatened against the Company, any of the Subsidiaries or any affiliated party of any of the foregoing which is required to be set forth in an amended or supplemented Prospectus which has not been set forth; and (g) there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been set forth. References to the Registration Statement and the Prospectus in this subsection (g) are to such documents as amended and any amendments supplemented at the date of such certificate.
(h) By the Closing Date, the Underwriters will have received clearance from the NASD as to the amount of compensation allowable or supplements thereto payable to the Underwriters, as described in the Registration Statement.
(other than i) At the time this Agreement is executed, the Underwriters shall have received a letter, dated such date, addressed to the Underwriters in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to the Underwriters and Underwriters' Counsel, from Deloitte & Touche:
(i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and the Exchange Act and the applicable Rules and Regulations;
(ii) stating that it is their opinion that the consolidated financial statements and other financial supporting schedules of the Company and statistical data included thereinthe Subsidiaries, as to which no opinion need be rendered) applicable, included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Acts Act and the Exchange Act and the Rules and Regulations.Regulations thereunder;
(viiii) and stating that, on the basis of a limited review which included a reading of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries, as applicable, (with an indication of the date of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries, as applicable), a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors of each of the Company and the Subsidiaries, consultations with officers and other employees of each of the Company and the Subsidiaries responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to the best of such counsel's knowledge, their attention which would lead them to believe that (A) there are no agreementsthe unaudited consolidated financial statements and supporting schedules of the Company and the Subsidiaries, contracts or other documents required by the Acts to be described as applicable, included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Prospectus Exchange Act and filed the Rules and Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements and supporting schedules of the Company and the Subsidiaries, as exhibits applicable, included in the Registration Statement, (B) at a specified date not more than five days prior to the later of the date of this Agreement or the effective date of the Registration Statement, there has been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries, or any decrease in the stockholders' equity or net current assets or net assets of the Company, as compared with amounts shown in the __________, 199_ balance sheet included in the Registration Statement other than those described as set forth in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, contemplated by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, or, if there was any change or decrease, setting forth the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ia
Appears in 1 contract
Sources: Underwriting Agreement (Ilx Inc/Az/)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Securityholders contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Firm Closing Date, to the accuracy of the statements of the Company's officers and the Selling Securityholders made pursuant to the provisions hereof, to the performance by the Company and the Selling Securityholders of their respective covenants and agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed prior to the Firm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or each Option Closing Datesuch amendment and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been declared effective not later than the earlier of (i) 11:00 A.M., New York City time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be; , containing information regarding the accuracy on and as initial public offering price of the Closing Date Securities has been filed with the Commission and (ii) the time confirmations are sent or Option Closing Dategiven as specified by Rule 462(b)(2) or, if any, of the statements of the officers of the Company made pursuant with respect to the provisions hereof; Original Registration Statement, such later time and the performance date as shall have been consented to by the Company on Representatives; if required, the Prospectus or any Term Sheet that constitutes a part thereof and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, any amendment or supplement thereto shall have become effective not later than 12:00 p.m., New York time, on been filed with the date of this Agreement or such later date Commission in the manner and within the time as shall be consented to in writing period required by Rules 434 and 424(b) under the Representative, and, at Closing Date and each Option Closing Date, if any, Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains received an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in dated the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Firm Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the CShum▇▇▇▇, ▇y▇op & Kend▇▇▇▇, dated ▇▇unsel for the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselCompany, to the effect that:
(i) the Company (A) has Company, each of its subsidiaries and, to such counsel's knowledge, each Eye Care Entity have been duly organized and is are validly existing as a corporation corporations in good standing under the laws of its jurisdiction, their respective jurisdictions of incorporation and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary are duly qualified to own or lease its properties and conduct its transact business as described foreign corporations and are in good standing under the Prospectus; laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company is not qualified as a foreign corporation in or any jurisdiction of its subsidiaries;
(ii) the Company, each of its subsidiaries and, to such counsel's knowledge, there being no jurisdiction in which failure each Eye Care Entity have corporate power to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation own or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures lease their respective properties and conduct their respective businesses as described in the Registration Statement concerning and the effects of federalProspectus, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entityhas corporate power to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially by the Company free and clear of any security interests, liens, encumbrances, equities or claims;
(iv) the Company has a duly an authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, ; all of the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any issued shares of capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, nonassessable and are were not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to the best knowledge of such counsel's knowledge, agreement, document other rights to subscribe for or instrument, purchase securities; the Firm Securities have been duly authorized by all necessary corporate action of the Company and, when issued, issued and delivered to and paid for and delivered in accordance with by the terms hereof or the Representative's WarrantUnderwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable and conform nonassessable; the Firm Securities have been duly included for quotation on the Nasdaq National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or, to the description thereof contained in the Prospectus; the holders thereof will not be subject best knowledge of such counsel, to other rights to subscribe for any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities; and, (B) to the purchase by the Underwriters best knowledge of the Securities from the Companysuch counsel, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities except as described in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective and the Prospectus, no holders of securities of the Company are entitled to have such securities registered under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsStatement;
(v) each the statements set forth under the heading "Description of Capital Stock" in the Prospectus, insofar as such statements purport to summarize the material provisions of the Preliminary Prospectuscapital stock of the Company, provide a summary of such material provisions to the Registration Statementextent required by the Act, and the Prospectus statements set forth under the headings "Business - Management Agreements," "Business - Governmental Regulations" and any amendments or supplements thereto (other than "Certain Transactions" in the financial Prospectus, insofar as such statements constitute a summary of the agreements and other financial and statistical data included matters referred to therein, as provide a summary of such agreements and matters to which no opinion need be rendered) comply as to form in all material respects with the requirements of extent required by the Acts and the Rules and Regulations.Act;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(vii) (A) to the best knowledge of such counsel's knowledge, (A) there no legal or governmental proceedings are no agreementspending to which the Company, contracts any of its subsidiaries or other documents any of the Eye Care Entities is a party or to which the property of the Company, any of its subsidiaries or any of the Eye Care Entities is subject that are required by the Acts to be described in the Registration Statement and or the Prospectus and filed as exhibits are not described therein, and, to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon best knowledge of such filing they would be incorporatedcounsel, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which no such proceedings have been filed are correct copies threatened against the Company, any of its subsidiaries or any of the documents Eye Care Entities or with respect to any of which they purport to be copies; their respective properties and (B) the descriptions in the Registration Statement and the Prospectus and such counsel does not know of any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental contract or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances document of a character that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viiviii) the Company has full legal rightissuance, power offering and authority to enter into this Agreement and sale of the Representative's Warrant, subject as Securities to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered Underwriters by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to this Agreement, the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which compliance by the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance other provisions of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business consummation of the Company conform to other transactions herein contemplated do not (A) require the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledgeconsent, the Company is not in breach ofapproval, or in default underauthorization, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iregistration or
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Registered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received from the Company such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Dickinson, Wright, Moon, Van Dusen & Veith, counsel to the CFree▇▇▇ ("▇ick▇▇▇▇▇y, ▇▇ig▇▇"), counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) to the best of such counsel's knowledge, has all requisite corporate power and authority, authority and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) except as described in the Prospectus, and to the best of such counsel's knowledgeknowledge after reasonable investigation, the Company does not own an equity interest in any other corporation, limited liability company, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, Description of Capital Stock," and to the knowledge of such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement Agreement, the Representative's Warrant Agreement, and as described in the Prospectus. The Securities, Registered Securities and all other securities issued or issuable by the Company, Company conform in all material respects to all the statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessablenonassessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Registered Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranttheir terms, will be validly issued, fully paid and non-assessable nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Registered Securities has been duly and validly taken; and the certificates representing the Registered Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the The Representative's Warrant of the Securities to be sold by the Company, the Underwriters Warrants constitute valid and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its binding obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal rightissue and sell, power upon exercise thereof and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrantpayment therefor, the receipt number and type of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement securities of the Company enforceable against the Company in accordance with its terms called for thereby (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law). Upon the issuance and delivery pursuant to this Agreement of the Registered Securities to be sold by the Company, the Company will convey, against payment therefor as provided herein, to the Underwriters and the Representative, respectively, good and marketable title to the Registered Securities free and clear of all liens and other encumbrances
(iv) the Registration Statement is effective under the Act, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and neither no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the best of such counsel's knowledge, threatened or contemplated under the Act;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Regulations. Such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and the Representative and representatives of the independent public accountants for the Company, at which conferences the contents of the Preliminary Prospectus, the Registration Statement, the Prospectus, and any amendments or supplements thereto were discussed, and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Prospectus, the Registration Statement and Prospectus, and any amendments or supplements thereto, on the basis of the foregoing, no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or the Preliminary Prospectus or Prospectus or amendment or supplement thereto as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Preliminary Prospectus, the Registration Statement or Prospectus, and any amendments or supplements thereto);
(vi) to the best of such counsel's execution knowledge after reasonable investigation, (A) there are no agreements, contracts or delivery other documents required by the Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound are accurate in all material respects and fairly represent the information required to be shown by Form 1; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against the Company which (x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), (y) questions the validity of the capital stock of the Company or this Agreement, or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; and (D) there is no action, suit or proceeding pending or threatened against the Company before any court or arbitrator or governmental body, agency or official in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the financial condition, business, affairs, stockholders' equity, operations, properties, business or results of operations of the Company, which could adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(vii) the Company has the corporate power and authority to enter into each of this Agreement and of the Representative's WarrantWarrant Agreement and to consummate the transactions provided for therein; and each of this Agreement and the Representative's Warrant Agreement has been duly authorized, executed and delivered by the Company. Each of this Agreement and the Representative's Warrant Agreement, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and none of the Company's execution, delivery or performance hereunder of this Agreement and thereunderthe Representative's Warrant Agreement, its the consummation by the Company of the transactions contemplated hereinherein or therein, or the conduct of its the Company's business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, thereto conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, as amended, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessbound, or (C) any federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company or any judgment, decree or order known to such counsel of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be renderedrendered or under federal securities laws, as to which no opinion need be rendered pursuant to this subsection (viii) is required in connection with the issuance of the Registered Securities pursuant to the Prospectus Prospectus, and the Registration Statement, the performance of this Agreement and the Representative's Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to the best of such counsel's knowledgeknowledge after reasonable investigation, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to the best knowledge of such counsel's knowledge, and except as disclosed in Registration Statement and the Prospectus, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be is bound or to which the property or assets (tangible or intangible) of any of the Company iis subject; and the Company is not in violation of any term or provision of its articles of incorporation or by-laws, as amended, and to the best of such counsel's knowledge after reasonable investigation, not in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(xi) the statements in the Prospectus under "Divid
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to the continuing accuracy each of the representations following terms and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Notification that the Registration Statement which has become effective shall have been received by the Underwriters and the Prospectus shall have been timely filed with the Commission in accordance with Section 6(a) of this Agreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been or shall be in form effect and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement or the ISA Exemption shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or shall be pending before or contemplated threatened by the Commission or the ISA, and any request requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Commission and the Underwriters' Counsel. If .
(c) The representations and warranties of the Company has elected to rely upon Rule 430A of contained in this Agreement and in the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement certificates delivered pursuant to such Rule 430A Section 5(e) shall have been transmitted to the Commission for filing pursuant to Rule 497 be true and correct when made and on and as of the Rules and Regulations within the prescribed time period, and prior to each Closing Date as if made on such date and the Company shall have provided evidence satisfactory performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to the Representative of be performed or satisfied by them at or before such timely filing, or a post-effective amendment providing such information Closing Date.
(d) No Underwriter shall have been promptly filed and declared effective in accordance with advised by the requirements of Rule 497 Company or any of the Rules Subsidiaries or shall have discovered and Regulations.
(b) The Representative shall not have advised disclosed to the Company that the Registration Statement, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which, which in the Representative's opinionopinion of counsel to the Underwriters, is material, or omits to state a fact which, in the Representative's opinion, is material and is required opinion of counsel to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinionUnderwriters, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(ce) On or prior The Representatives shall have received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of the Representative shall have received from Underwriters' Counsel, such opinion chief executive or opinions with respect chief operating officer and the chief financial officer or chief accounting officer of the Company to the organization effect that (i) the signers of the Company, the validity of the Securities, such certificate have carefully examined the Registration Statement, the Prospectus and other related matters this Agreement and that the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date with the Representatives may request same effect as if made on such Closing Date and Underwriters' Counsel shall have received the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;Securities Act.
(vf) The Representatives shall have received, at the time this Agreement is executed and on each Closing Date, a signed letter from each of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Tevet and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company, LLP, addressed to the Preliminary ProspectusRepresentatives, and dated, respectively, the date of this Agreement and each such Closing Date, in form and substance reasonably satisfactory to the Representatives confirming that they are independent accountants within the meaning of the Securities Act and the Rules, that the response to Item 10 of Form F-1 on which the Registration Statement, Statement was prepared is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) reported on by them comply as to form in all material respects with the applicable accounting requirements of the Acts Securities Act and the Rules and Regulations.Rules;
(viii) that Company officials having advised them that no consolidated financial statements as of any date subsequent to December 31, 1999 are available on the basis of a reading of the minutes of the meetings of the shareholders and directors of the Company, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the best date of the latest audited financial statements, except as disclosed in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that with respect to the Company, there was, at a specified date not more than five business days prior to the date of the letter, any changes in capital stock or any increases in long-term debt of the Company or any decreases in working capital or shareholders' equity in the Company, as compared with the amounts shown on the Company's audited balance sheet as December 31, 1999 included in the Registration Statement, or for the period from January 1, 2000 to a date not more than five business days prior to the date of the letter there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net sales or in the total or per-share amounts of net income;
(iii) they have performed certain other procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such counsel's knowledgeletter, as a result of which they determined that certain information of an accounting, financial or statistical nature (Awhich is limited to accounting, financial or statistical information derived from the general accounting records of the Company) there are no agreements, contracts or other documents required by the Acts to be described set forth in the Registration Statement and the Prospectus and filed as exhibits to reasonably specified by the Registration Statement other than those described Representatives, including the amounts in "Summary Consolidated Financial Data," "Selected Consolidated Financial Data," "Capitalization" and "Management's Discussion and Analysis of Financial Condition and Results of Operations," agree with the corresponding amounts in the Registration Statement (audited and unaudited financial statements from which such amounts were derived; or required to be filed under agrees with the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies accounting records of the documents of which they purport Company; References to be copies; (B) the descriptions in the Registration Statement and the Prospectus in this paragraph (f) are to such documents as amended and any supplement or amendment thereto of contracts and other documents to which supplemented at the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business date of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Companyletter.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company i
Appears in 1 contract
Sources: Underwriting Agreement (Camtek LTD)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, with respect to the Company as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Representatives shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Representatives' opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iRepresentatives'
Appears in 1 contract
Sources: Underwriting Agreement (Dynacs Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time periodperiod and, and prior to the Closing Date Date, the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing Date, if any, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Silverman, Collura, & Veith, counsel to the C▇▇▇▇▇y▇▇, P.C., counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiary (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; each of the Company and the Subsidiary is not qualified as a and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates, franchises and permits obtained by it from governmental or regulatory officials and agencies, and all federal, state, local and foreign corporation in any jurisdiction (to such counsel's knowledgelaws, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)rules and regulations; to such counsel's knowledgeand, neither the Company nor the Subsidiary has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the CompanyCompany or the Subsidiary. The disclosures in the Registration Statement concerning the effects of federal, state state, local and local foreign laws, rules and regulations on each of the Company's and the Subsidiary's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does owns, directly or indirectly, sixty six and two-thirds percent (66 2/3%) of the outstanding capital stock or other ownership interests of the Subsidiary, and all such shares or other ownership interests have been validly issued, are fully paid and non-assessable, were not own issued in violation of any preemptive rights and are owned free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other restrictions or equities of any kind whatsoever.
(iii) except as described in the Prospectus, none of the Company nor the Subsidiary owns an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "CapitalizationCAPITALIZATION" and ", and, to such counsel's knowledge, after due inquiry, DESCRIPTION OF SECURITIES" and neither the Company nor the Subsidiary is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue issue, sell, transfer, purchase or redeem any capital stock, rights, warrants, options or other securities, except for this Agreement and the Representative's Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the CompanyCompany conform, conform or when issued and paid for will conform, in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company and the Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or the certificate of incorporation of Subsidiary or any similar rights granted by the Company or, to such counsel's knowledge, any agreement, document or instrumentthe Subsidiary. The Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrantand thereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant Agreement of the Firm Securities and the Option Securities and the Representative's Warrants to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the Firm Securities and the Option Securities and the Representative's Warrants free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company, and the purchase by the Representative of the Representative's Warrants from the Company (C) the consummation by the Company of any of its obligations under this Agreement or the Representative's Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.
(ivv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(vvi) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vivii) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company or the Subsidiary is a party or by which it is bound, including any document to which the Company or the Subsidiary is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5S-1; (C) there is not pending or threatened against the Company or the Subsidiary any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company or the Subsidiary which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or the Subsidiary or this Agreement or the Representative's Warrant Agreement, or of any action taken or to be taken by the Company or the Subsidiary pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company or the Subsidiary before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the CompanyCompany or the Subsidiary, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or the Representative's Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Representative's Warrant Agreement;
(viiviii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 ActAgreement, and to consummate the transactions provided for herein and therein; and each of this Agreement and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement and the Representative WarrantRepresentative's Warrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of the Representative's WarrantWarrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company or the Subsidiary pursuant to the terms of, (A) the certificate Certificate of incorporation Incorporation or by-laws Bylaws of the CompanyCompany or the Certificate of Incorporation or Bylaws of the Subsidiary, (B) any license, contract, collective bargaining agreement, indenture, mortgage, deed of trust, lease, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company or the Subsidiary is a party or by which it is or they are or may be bound or to which any of its or their respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company or the Subsidiary of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company it
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of each of the representations and warranties of the Company and the Selling Shareholders contained herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company and each of the Selling Shareholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' opinion, is material, or omits to state a fact which, in the Representative's Underwriters' opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' opinion, is material, or omits to state a fact which, in the Representative's Underwriters' opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Underwriters' Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives may request Underwriters requests and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & VeithGree▇▇▇▇▇ ▇▇▇u▇▇▇, ▇.A., counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiaries (A) has been duly organized organized, except as to the Subsidiaries which shall be to the knowledge of Counsel, and based upon certificates of good standing or authorization or the like received from applicable jurisdictions, is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, except where the failure to be so qualified and in good standing has no material adverse effect on the Company, and (BC) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ihas
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, with respect to the Company as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may Representative request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Greenberg, Traurig, Hoffman, Lipoff, Rose▇ & Veith▇uen▇▇▇, ▇.A., counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiaries (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; each of the Company and the Subsidiaries is not qualified as a foreign corporation and has been doing business in any jurisdiction (to material compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledge, none of the Company nor any of the Subsidiaries has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the CompanyCompany or the Subsidiaries. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business and the Subsidiaries' businesses as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to the best of such counsel's knowledge, none of the Company does not nor any of the Subsidiaries own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiry, Description of Capital Stock," and none of the Company nor any of the Subsidiaries is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company and the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation or any of the Company or, to such counsel's knowledge, any agreement, document or instrumentSubsidiaries. The Securities Shares, the Representative's Warrants and the Representative's Shares to be sold by the Company hereunder and under the Representative's Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iother
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase and pay for the Shares to be delivered at each Time of Delivery shall be subject subject, in their discretion, to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each Option Closing Datesuch Time of Delivery, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company officers of the Company made pursuant to the provisions hereof; and , to the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder agreements hereunder, and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement which shall be in form and substance satisfactory If the registration statement as amended to date has not become effective prior to the Representative and Underwriter's Counselexecution of this Agreement, such registration statement shall have become been declared effective not later than 12:00 5:30 p.m., New York St. Petersburg time, on the date of this Agreement or such later date and and/or time as shall be have been consented to in writing by the RepresentativeUnderwriters in writing. If required, and, at Closing Date the Prospectus and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing and in accordance with Section 5(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted instituted, or shall be pending to the knowledge of the Company and the Underwriters, threatened or contemplated by the Commission Commission; and any request all requests for additional information on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulations.
(b) The Representative Holland & Knight LLP, counsel for the Underwriters, shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior furnished to the Closing Date, the Representative shall have received from Underwriters' Counsel, Underwriters such opinion or opinions opinions, dated such Time of Delivery, with respect to the organization incorporation of the Company, the validity of the SecuritiesShares being delivered at such Time of Delivery, the Registration Statement, the Prospectus Prospectus, and other related matters as the Representatives Underwriters may request reasonably request, and Underwriters' Counsel the Company shall have received furnished to such papers and information counsel such documents as they such counsel or the Underwriters request prior to enable such Time of Delivery for the purpose of enabling them to pass upon such matters.
(dc) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇yan opinion, dated the Closing Dateat each Time of Delivery, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselof Alst▇▇ & ▇ird LLP, to the effect that:
(i) The Company and each of its subsidiaries is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other jurisdiction other than Florida in which it owns or leases property, or conducts any business, so as to require such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(ii) The Company has no subsidiaries other than those listed on Exhibit 21.1 to the Registration Statement and, to the knowledge of such counsel, does not have any ownership interest in any partnership, joint venture, or other entity or association.
(iii) Except as disclosed in the Prospectus, to the knowledge of such counsel there are no outstanding (A) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (B) warrants, rights or options to subscribe for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations, or (C) obligations of the Company to issue any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such warrants, rights, or options.
(iv) Except as disclosed in the Prospectus, to the knowledge of such counsel there are no contracts, agreements, or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement (or any such right has been effectively exercised or waived) or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.
(v) All offers and sales of the Company's capital stock prior to the date hereof were at all relevant times duly registered under the Act or exempt from the registration requirements of the Act.
(vi) The Company is not, nor with the giving of notice or passage of time or both, will it be, in violation of its Articles of Incorporation or Bylaws or in default under any indenture, mortgage, deed of trust, loan agreement, lease, or other agreement or instrument to which the Company is a party or to which any of its properties or assets is subject and which in each instance is an exhibit to the Registration Statement.
(vii) The issue and sale of the Shares being issued at such Time of Delivery and the performance of this Agreement and the consummation of the transactions herein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement, lease, or other agreement or instrument known to such counsel to which the Company is party or to which any of its properties or assets is subject, nor will such action conflict with or violate any provision of the Articles of Incorporation or Bylaws of the Company or any federal statute, rule or regulation normally applicable to the transactions of the type herein contemplated, or to the knowledge of such counsel, any other statute, rule or regulation (assuming compliance with all applicable state securities or blue sky laws) or, to the extent known to such counsel, any order, judgment, or decree of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets (it being understood that such counsel need not express any opinion with regard to insurance regulatory matters or, under this paragraph, compliance with federal securities laws).
(viii) No consent, approval, authorization, order, or declaration of or from, or registration, qualification or filing with, any federal court or governmental agency or body, or to the knowledge of such counsel, any other court or governmental agency or body, is required for the issue and sale of the Shares or the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Act and the rules and regulations thereunder and such as may be required by the National Association of Insurance Dealers, Inc. or under state securities or blue sky laws in connection with the offer, sale, and distribution of the Shares by the Underwriters (it being understood that such counsel need not express any opinion with regard to insurance regulatory matters).
(ix) To such counsel's knowledge and other than as disclosed in or contemplated by the Prospectus, (A) there is no litigation, arbitration, claim, proceeding (formal or informal) or investigation pending or threatened (or any reasonable basis therefor) in which the Company or any of its subsidiaries is a party or of which any of its properties or assets is the subject which, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (B) neither the Company nor any of its subsidiaries is in violation of, or in default with respect to, any foreign or domestic statute, rule, regulation, order, judgment or decree, (excluding any insurance law, rule, regulation, order, judgment or decree).
(x) This Agreement has been duly organized authorized, executed and delivered by the Company.
(xi) The Registration Statement and the Prospectus and each amendment or supplement thereto (other than the financial statements and related schedules and other financial and statistical data therein and the section therein entitled "Underwriting," as to which such counsel need express no opinion), as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the rules and regulations thereunder. The descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings (excluding insurance and Florida laws, regulations, and governmental proceedings, as to which such counsel need not express an opinion), or contracts and other documents are accurate in all material respects and fairly present the information required to be shown, and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Registration Statement or Prospectus that are not described as required or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required.
(xii) The Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b), and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and, to such counsel's knowledge, no proceedings for that purpose have been instituted or threatened or are contemplated by the Commission.
(xiii) The Company is not, and will not be as a result of the consummation of the transactions contemplated by this Agreement, an "investment company," or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deem proper, on warranties, representations and certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than Georgia or the United States, to the extent satisfactory in form and scope to counsel for the Underwriters, upon the opinion of local counsel satisfactory to counsel for the Underwriters, provided that such counsel states such counsel believes that the Underwriters are justified in relying upon such opinion and copies of such opinion are delivered to the Underwriters and counsel for the Underwriters. In addition, such counsel shall state that (i) based solely upon a letter from The Nasdaq Stock Market to the Company attached to such counsel's opinion, the Firm Shares and the Optional Shares have been approved for quotation on The Nasdaq National Market upon issuance, (ii) based solely upon a certificate of officers of the Company, no securities of the Company have previously been offered or sold to any person who is not a Florida resident, except in connection with the transactions contemplated by this Agreement, and (iii) such counsel has participated in conferences with officers and other representatives of the Company and the Underwriters and their counsel during which the contents of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and, although such counsel has not independently verified and is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, on the basis of the information that such counsel developed in the course of the performance of the services referred to above, considered in the light of such counsel's understanding of the applicable law, nothing came to their attention that caused them to believe that the Registration Statement or the Prospectus (other than the financial statements and schedules and the other financial and statistical data therein, as to which such counsel need express no belief), on such effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) The Underwriters shall have received an opinion, dated at each Time of Delivery, of Maida, Gall▇▇▇▇ & ▇eal, ▇.A., to the effect that:
(i) The Company and each of its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction, Florida and (B) has all requisite the corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary authority to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All The Company has the corporate power and authority to enter into this Agreement and perform its obligations hereunder.
(ii) The Company's authorized, issued and outstanding securities capital stock is set forth in the Prospectus. All of the issued shares of Common Stock of the Company have been duly authorized and validly issued and issued, are fully paid and non-assessable; nonassessable and conform to the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws description of the State Common Stock contained in the Prospectus. None of New York as currently in effect by reason the issued shares of being such holders; and none capital stock of such securities were the Company has been issued or is owned or held in violation of the any preemptive rights of shareholders, and no person or entity (including any holders holder of any security outstanding shares of capital stock of the Company contained in the certificate of incorporation of the Company Company) has any statutory preemptive or, to the knowledge of such counsel, other rights to subscribe for any of the Shares. All offers and sales of the Company's knowledge, any agreement, document capital stock outstanding prior to the date hereof were the subject of an available exemption from the registration or instrument. qualification requirements of the Florida securities or blue sky laws (to the extent such offers and sales were subject to such Florida laws).
(iii) The Securities Shares to be issued and sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for issued and delivered in accordance with the terms hereof or the Representative's Warrantagainst payment therefor as provided herein, will be validly issued, issued and fully paid and non-assessable nonassessable and will conform to the description thereof of the Common Stock contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing evidencing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant Shares comply with all requirements of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyapplicable law.
(iv) the Registration Statement is effective under the ActsESIF holds such insurance licenses, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued certificates and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, permits from governmental or other proceeding authorities (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise Insurance Licenses) which are necessary to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and the Company and ESIF have fulfilled and performed all obligations necessary to maintain the Insurance Licenses. Neither the Company nor ESIF has received any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions notice of, or constitutes or will constitute a default underand such counsel has no knowledge of, any action, suit, proceeding, or investigation, and to the best knowledge of such counsel there has been no threatened action, suit, proceeding or investigation, that could reasonably be expected to result in the creation revocation, termination or imposition suspension of any lienInsurance Licenses.
(v) The issue and sale of the Shares being issued at such Time of Delivery and the performance of this Agreement and the consummation of the transactions herein contemplated will not violate any Florida statute, chargerule, claimor regulation, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever uponto the extent known to such counsel, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statuteorder, judgment, decree, order, rule or regulation applicable to the Company decree of any arbitrator, court, regulatory body court or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities properties or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Companyassets related to insurance regulatory matters.
(viiivi) except as described in the Prospectus, no No consent, approval, authorization or authorization, order, and no or declaration of or from, or registration, qualification or filing with, any Florida court or Florida governmental agency or body or to the knowledge of such counsel from any other court, regulatory body, government governmental agency or other body (other than such as may be required under Blue Sky laws, as related to which no opinion need be rendered) insurance regulatory matters is required in connection with for the issuance issue and sale of the Securities pursuant to Shares or the Prospectus and the Registration Statement, the performance consummation of this Agreement and the transactions contemplated hereby;by this Agreement, except such as have been obtained under the Florida Insurance Code and the rules and regulations thereunder.
(ixvii) to such counselThe Plan has been duly adopted by the required vote of ESIF's knowledge, Board of Trustees and members and is in compliance with the properties and business insurance laws of the Company conform State of Florida applicable to the description thereof contained reorganization of group self-insurance funds into stock property and casualty insurance companies. Other than the conditions to effectiveness set forth in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, Order or in default underthe Plan, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any no other agreement or instrument evidencing an obligation approvals are required to be obtained under the Florida Insurance Code for borrowed money, or any other agreement or instrument to which the Company is a party or by which any effectiveness of the Company may be bound Plan. Prior to or to which contemporaneously with the property or assets (tangible or intangible) of any of the Company iFirst Time of
Appears in 1 contract
Sources: Underwriting Agreement (Summit Holding Southeast Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's Underwriters' reasonable opinion, is material, or omits to state a fact which, in the Representative's Underwriters' reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriters shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives Underwriters may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received from Colombo & Bonacci, P.C., counsel to the Compa▇▇, ▇▇ted the Closing Date, addressed to the Underwriters in the form attached hereto as Exhibit D. In rendering such opinion, such counsel may rely: (A) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance satisfactory to Underwriters' Counsel) of other counsel acceptable to Underwriters' Counsel, familiar with the applicable laws; and (B) as to matters of fact, to the extent they deem proper, on certificates and written statements of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and the Subsidiaries, provided copies of any such statements or certificates shall be delivered to Underwriters' Counsel if requested. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and that the Underwriters and they are justified in relying thereon. At each Option Closing Date, if any, the Underwriters shall have received the favorable opinion of Stursberg Colombo & VeithBonacci, P.C., counsel to the C▇▇▇▇▇▇y, dated the ▇▇▇▇▇ such Option Closing Date, addressed to the Underwriters and in form consistent with Exhibit D confirming as of such Option Closing Date the statements made by Colombo & Bonacci, P.C. in their opin▇▇▇ ▇▇▇ive▇▇▇ ▇▇ the Closing Date.
(e) On or prior to each of the Closing Date and substance satisfactory to each Option Closing Date, if any, Underwriters' CounselCounsel shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in subsection (c) of this Section 6 or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(f) Prior to each of Closing Date and each Option Closing Date, if any: (i) there shall have been no materially adverse change nor development involving a prospective change in the condition, financial or otherwise, prospects, stockholders' equity or the business activities of the Company and the Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of the Subsidiaries, from the latest date as of which the financial condition of the Company and the Subsidiaries is set forth in the Registration Statement and Prospectus which is adverse to the Company and the Subsidiaries taken as a whole; (iii) neither the Company nor any of the Subsidiaries shall be in material default under any provision of any instrument relating to any outstanding indebtedness; (iv) neither the Company nor any of the Subsidiaries shall have issued any securities (other than the Securities or underlying common stock from the exercise of options or warrants) or declared or paid any dividend or made any distribution in respect of its capital stock of any class and there has not been any change in the capital stock, or any change in the debt (long or short term) or liabilities or obligations (contingent or otherwise) of the Company or any of the Subsidiaries, except (x) in connection with the acquisition of assets of the Company through purchase money financing and financing related to timeshare sales which is secured by timeshare receivables, (y) for debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) for debt for working capital not to exceed $1,500,000 outstanding; (v) no material amount of the assets of the Company or any of the Subsidiaries shall have been pledged or mortgaged other than in the ordinary course of the Company's business, except as set forth in the Registration Statement and Prospectus and except (x) in connection with the acquisition of assets of the Company through purchase money financing and financing related to timeshare sales which is secured by timeshare receivables, (y) for debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) for debt for working capital not to exceed $1,500,000 outstanding; (vi) no action, suit or proceeding, at law or in equity, shall have been pending or, to the effect that:
(i) best of the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counselCompany's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, threatened against the Company has not received or any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchiseSubsidiaries, or permit whichaffecting any of their respective properties or businesses, singly before or in the aggregateby any court or federal, if the subject of state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding, would finding may materially adversely affect the business, operations, conditionprospects, financial condition or otherwise, or the earnings, business affairs or prospects, properties, business or assets income of the Company. The disclosures in Company and the Registration Statement concerning the effects of federalSubsidiaries taken as a whole, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization except as set forth in the Registration Statement and Prospectus; and (vii) no stop order shall have been issued under the Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission or any state regulatory authority.
(g) At each of the Closing Date and any amendment or supplement theretoeach Option Closing Date, under "Capitalization", and, to such counsel's knowledge, after due inquiryif any, the Underwriters shall have received a certificate of the Company is not a party to signed by the principal executive officer and by the chief financial or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by chief accounting officer of the Company, conform in all material respects to all statements with respect thereto contained in dated the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document Closing Date or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's WarrantOption Closing Date, as the case may be, will acquire good and marketable title to the Securities free effect that each of such persons has examined the Registration Statement, the Prospectus, this Agreement and clear of any pledgethe Indenture, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever and that:
(except those arising out of acts or claims against i) the Underwriters or the holders representations and warranties of the Representative's Warrant). No transfer tax is payable by or Company in this Agreement and the Indenture are true and correct, as if made on behalf and as of the Underwriters in connection with (A) Closing Date or such Option Closing Date, as the issuance by case may be, and the Company of has complied with all agreements and covenants and satisfied all conditions contained in this Agreement and the SecuritiesIndenture on its part to be performed or satisfied at or prior to the Closing Date or such Option Closing Date, (B) as the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.case may be;
(ivii) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or any part thereof or the qualification of the Trustee has been issued issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each of such person's knowledge after due inquiry, are contemplated or threatened or contemplated under the ActsAct;
(viii) the Registration Statement and the Prospectus and, if any, each amendment and each supplement thereto, contain all statements and information required to be included therein, and none of the Preliminary Prospectus, the Registration Statement, the Prospectus or any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and none of the Preliminary Prospectus or any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus: (a) neither the Company nor any of the Subsidiaries has incurred up to and including the Closing Date or the Option Closing Date, as the case may be, other than in the ordinary course of its business, any material liabilities or obligations, direct or contingent (except as otherwise contemplated in subclause (d) of this clause (iv)); (b) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (c) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business (except as otherwise contemplated in subclause (d) of this clause (iv)); (d) there has not been any material change in the capital stock or long-term debt or any increase in the short-term borrowings (other than any increase in the short-term borrowings in the ordinary course of business) of the Company or any of the Subsidiaries (except for (x) financing in connection with the acquisition of assets of the Company through purchase money financing and financing related to timeshare sales which is secured by timeshare receivables, (y) debt incurred to finance capital improvements to existing properties not to exceed $3,000,000 outstanding and (z) debt for working capital not to exceed $1,500,000 outstanding); (e) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not insured; (f) there is no material litigation which is pending or, to the best of the Company's knowledge, threatened against the Company, any of the Subsidiaries or any affiliated party of any of the foregoing which is required to be set forth in an amended or supplemented Prospectus which has not been set forth; and (g) there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been set forth. References to the Registration Statement and the Prospectus in this subsection (g) are to such documents as amended and any amendments supplemented at the date of such certificate.
(h) By the Closing Date, the Underwriters will have received clearance from the NASD as to the amount of compensation allowable or supplements thereto payable to the Underwriters, as described in the Registration Statement.
(other than i) At the time this Agreement is executed, the Underwriters shall have received a letter, dated such date, addressed to the Underwriters in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to the Underwriters and Underwriters' Counsel, from Deloitte & Touche:
(i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and the Exchange Act and the applicable Rules and Regulations;
(ii) stating that it is their opinion that the consolidated financial statements and other financial supporting schedules of the Company and statistical data included thereinthe Subsidiaries, as to which no opinion need be rendered) applicable, included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Acts Act and the Exchange Act and the Rules and Regulations.Regulations thereunder;
(viiii) and stating that, on the basis of a limited review which included a reading of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries, as applicable, (with an indication of the date of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries, as applicable), a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors of each of the Company and the Subsidiaries, consultations with officers and other employees of each of the Company and the Subsidiaries responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to the best of such counsel's knowledge, their attention which would lead them to believe that (A) there are no agreementsthe unaudited consolidated financial statements and supporting schedules of the Company and the Subsidiaries, contracts or other documents required by the Acts to be described as applicable, included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Prospectus Exchange Act and filed the Rules and Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements and supporting schedules of the Company and the Subsidiaries, as exhibits applicable, included in the Registration Statement, (B) at a specified date not more than five days prior to the later of the date of this Agreement or the effective date of the Registration Statement, there has been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries, or any decrease in the stockholders' equity or net current assets or net assets of the Company, as compared with amounts shown in the __________, 199_ balance sheet included in the Registration Statement other than those described as set forth in or contemplated by the Registration Statement (Statement, or, if there was any change or required to be filed under decrease, setting forth the Exchange Act if upon amount of such filing they would be incorporated, in whole change or in part, by reference therein) and the Prospectus and filed as exhibits theretodecrease, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is during the period from __________, 1995 to a specified date not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise more than five days prior to the same), or involving the properties or business later of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity date of the capital stock of the Company or this Agreement or the Representative's Warrant or effective date of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ithere
Appears in 1 contract
Sources: Underwriting Agreement (Ilx Inc/Az/)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares shall be subject subject, in their sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company and the Selling Stockholders made in certificates delivered pursuant to the provisions hereof; and , to the performance by the Company and the Selling Stockholders on and as of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations hereunder hereunder, and to the following further conditions:
(a) The If the Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselClosing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have become been declared effective not later than 12:00 p.m., New York time, on the first full business day next following the date of this Agreement hereof or such later date and time as shall be have been consented to in writing by the RepresentativeUnderwriters. If required, andthe Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Rules and Regulations. If required, at Closing Date and each Option Closing Date, if any, no any amendment or supplement to the Prospectus shall have been filed in accordance with Rule 424(c) under the Act. No stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Selling Stockholders or the Underwriters, shall be pending or contemplated by the Commission Commission. The Company shall have complied, to the reasonable satisfaction of the Underwriters and Underwriters' Counsel, with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and RegulationsRegistration Statement, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Underwriters shall not have advised the Company that or any Selling Stockholder that, in the opinion of the Underwriters or Underwriters' Counsel, (i) the Registration Statement, or any amendment thereto, contains includes an untrue statement of a material fact which, in the Representative's opinion, is material, or omits to state a material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Prospectus, or any amendment or supplement thereto, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative The Underwriters shall have received from Underwriters' CounselCounsel an opinion dated the Closing Date, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the SecuritiesShares, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriters reasonably may request and request. Underwriters' Counsel shall have received from the Company and the Selling Stockholders such papers and information as they may request to enable them to review or pass upon such mattersmatters or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, or covenants of the Company or any Selling Stockholder contained herein.
(d) At Closing Date, the The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the Cfrom ▇▇▇▇▇y▇, dated ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company and the Selling Stockholders, an opinion, on or prior to the date Rights certificates and Prospectuses are first mailed to Safeguard Shareholders and on the Closing Date, addressed to dated the Underwriters respective dates thereof and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the The Company (A) has been is duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of its jurisdiction, jurisdiction of organization and is duly qualified to transact business as foreign corporations and is in good standing in each jurisdiction in which the Company has represented to such counsel that it conducts business;
(Bii) The Company has all requisite corporate power and authorityauthority necessary or required to own or lease its properties and conduct its businesses as described in the Registration Statement and the Prospectus;
(iii) The Company has all requisite power and authority (corporate and other) to enter into this Agreement, the Rights Agent Agreement and the Other Purchasers Standby Purchase Agreements and to consummate the transactions provided for herein and therein; and this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement have each been duly authorized, executed and delivered by the Company. Each of this Agreement, assuming due authorization, execution and delivery by the Underwriters, and each of the Other Purchasers Standby Purchase Agreements, and the Rights Agent Agreement, assuming due authorization, execution and delivery by the parties thereto other than the Company, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting creditors' rights generally or by general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or equity, and except as rights to indemnity and contribution hereunder may be limited by applicable law, statutory duties or public policy (provided that as of the first date of the opinion only, such opinion need not express any opinion set forth above with respect to the Other Purchaser Standby Purchase Agreements that have not theretofore been executed and delivered). The Company's execution and delivery of this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, its performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby do not and will not 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 liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or equities of any kind whatsoever upon, any right, property or asset (tangible or intangible) of the Company pursuant to the terms of (A) the charter or bylaws, each as amended through the date of the opinion, of the Company, (B) any material lease, permit, license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, except that such counsel need not express an opinion with respect to any violation based upon any covenant of a financial or numerical nature or that requires arithmetic computation and such counsel has obtained not otherwise known of or had reason to expect the occurrence of such default, or (C) to the knowledge of Company counsel, any and all authorizationsstatute, approvalsrule, ordersregulation, licensesjudgment, certificatesdecree or order applicable to the Company or any of its activities or properties adopted or issued by an arbitrator, franchises and permits of and from all court, regulatory body or administrative agency or other governmental agency or regulatory officials and bodies body (including, without limitation, including those having jurisdiction over environmental or similar matters), materially necessary to own domestic or lease its properties and conduct its business as described in the Prospectus; foreign, having jurisdiction over the Company is not qualified or any of its respective activities or properties (other than such as a foreign corporation may be required under state securities or "Blue Sky" laws and such as may be required by the by-laws and rules of the NASD in any jurisdiction connection with the purchase and distribution of the Shares by the Underwriters);
(to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorizationiv) No consent, approval, order, license, certificate, franchiseauthorization or order of, or permit whichfiling with, singly any governmental agency or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", andbody or, to such counsel's knowledge, after due inquiryany court is required in connection with the issuance of the shares of Common Stock to be sold by the Company, the Company's performance of its obligations hereunder, the Offering, or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters and except such other approvals as have been obtained and remain in full force and effect. Upon the effectiveness of the Registration Statement, the Common Stock will be registered pursuant to Section 12(g) of the Exchange Act, and will be included in the Nasdaq National Market;
(v) At the date or dates indicated in the Prospectus, the authorized, issued and outstanding capital stock of the Company was as set forth therein, and conformed as to legal matters, to the extent that it constitutes matters of law or legal conclusions, to the description thereof contained therein under the captions "CAPITALIZATION" and "DESCRIPTION OF CAPITAL STOCK." All of the issued shares of Common Stock of the Company (including the Shares sold by the Selling Stockholders) have been duly authorized and validly issued, and are fully paid and non-assessable; the holders thereof are not subject to personal liabilities solely by reason of holding such shares; and none of such shares have been issued in violation of the preemptive rights of any security holders of the Company known to Company counsel. The Shares to be sold by the Company have been duly authorized and, when paid for in accordance herewith, will be validly issued, fully paid and non-assessable, and with no personal liability resulting solely from the ownership thereof. Upon the issuance and delivery pursuant to this Agreement of the Shares to be sold by the Company to the Underwriters, assuming the Underwriters do not have knowledge of any Adverse Claim, the Underwriters will acquire good and marketable title to such Shares free and clear of any liens, charges, claims, encumbrances, pledges, security interests, defects or other like restrictions or like equities of any kind whatsoever. Except as described in the Prospectus, there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party or of which it has knowledge, and the Shares to be sold by the Company are not subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The SecuritiesExcept as described in the Prospectus, and all no holder of any securities of the Company or of any options, warrants or other convertible or exchangeable securities of the Company which are exercisable for or convertible or exchangeable for securities of the Company has any right (which has not been waived) to include any securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained Company in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of or any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities registration statement to be sold filed by the Company hereunder are not within the period commencing on the date the Registration Statement is declared effective by the Commission and will not be subject ending 180 days after the Expiration Date or to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of require the Company or, to file a registration statement under the Act during such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with period. Based on the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform form of specimen certificate filed as an exhibit to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationRegistration Statement, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities Shares are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(ivvi) the The Registration Statement is has become effective under the Acts, and, if applicable, Act. Any required filing of all pricing information the Prospectus pursuant to Rule 424(b) and 430A(a)(3) of the Rules and Regulations has been timely made in accordance with the appropriate form under Rule 430A, and, to time period required thereby. To such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under threatened, by the ActsCommission;
(vvii) each of At the Preliminary Prospectustime the Registration Statement was declared effective by the Commission, the Registration Statement, Statement and the Prospectus and any amendments amendment or supplements supplement thereto (other than the financial statements statements, and notes thereto, the financial schedules, and the other financial and statistical data included thereinin the Registration Statement or the Prospectus or omitted therefrom, as to which such counsel need express no opinion need be renderedopinion) comply complied as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(viviii) Such counsel has reviewed all contracts and other documents referred to in the best Registration Statement and the Prospectus, and the summaries of and other disclosures regarding such contracts and other documents included in the Registration Statement and the Prospectus fairly present the information required to be shown with respect thereto. To such counsel's knowledge, (A) there are no agreements, contracts or other documents of a character required by to be filed as exhibits to the Acts Registration Statement or required to be described in the Registration Statement and or the Prospectus and that were not filed or disclosed as exhibits to the Registration Statement other than those described required;
(ix) Except as disclosed in the Registration Statement (or required Prospectus, to be filed under the Exchange Act if upon such filing they would be incorporatedcounsel's knowledge, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened or contemplated against the Company Company, or involving the properties or business of the Company, any action, arbitration, suit, proceeding, inquiry, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, including those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against that (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1A) is required to be disclosed in the Registration Statement which and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed, (2B) questions the validity of the capital stock of the Company or the validity or enforceability of this Agreement or Agreement, (C) questions the Representative's Warrant or validity of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; this Agreement, or (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect effect the present or prospective ability of the Company to perform its obligations under this Agreement or which result in any manner draws into question the validity or enforceability of this Agreementa Material Adverse Effect;
(viix) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act, nor, by receipt of the proceeds from its sale by it of the Shares pursuant to this Agreement, will the Company has full legal right, power become or be deemed to be an "investment company" under such Act;
(xi) No transfer taxes are required to be paid in connection with the sale and authority delivery of the Common Stock by the Company to enter into this Agreement the Underwriters hereunder;
(xii) The certificates evidencing the Rights to be distributed to the Safeguard Shareholders and the Representative's Warrant, subject as shares of Common Stock to be delivered hereunder are in due and proper form under Delaware law;
(xiii) All of the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has Rights have been duly authorizedauthorized and validly issued, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to when issued and distributed as set forth in the Representative's WarrantProspectus, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, will be legally issued and valid and binding agreement obligations of the Company enforceable against having the rights summarized in the Prospectus; and none of such Rights will have been issued in violation of the preemptive rights of any security holders of the Company in accordance with its terms (except arising as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium a matter of law or other laws of general application relating under or pursuant to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery Certificate of this Agreement and of Incorporation, as amended, the RepresentativeCompany's WarrantBy-Laws, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinas amended, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.bound;
(viiixiv) except as described in Each Selling Stockholder has the Prospectus, no consent, approval, authorization or order, legal right and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as power to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of enter into this Agreement and each Selling Stockholder has the transactions contemplated hereby;
(ix) requisite capacity and legal right to such counsel's knowledgesell, transfer and deliver hereunder the properties Shares proposed to be sold hereunder. This Agreement has been executed and business delivered by each of the Company conform Selling Stockholders. This Agreement, assuming due authorization, execution and delivery by the Underwriters constitutes the legal, valid, and binding obligations of each Selling Stockholder enforceable against each Selling Stockholder in accordance with its terms, subject to the description thereof contained in the Registration Statement effect of general principles of equity (including standards of materiality, good faith, fair dealing and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company irea
Appears in 1 contract
Sources: Standby Underwriting Agreement (Who Vision Systems Inc /Fl)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Securities shall be subject subject, in the Representatives' sole discretion, to the continuing accuracy of the representations and warranties of the Company and the Selling Stockholders contained herein as of the date hereof and as of the Closing Date and each Option Firm Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Firm Closing Date, as the case may be; to the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the Company's officers of and the Company Selling Stockholders made pursuant to the provisions hereof; and , to the performance by the Company on and as the Selling Stockholders of the Closing Date and each Option Closing Date, if any, of its their respective covenants and obligations agreements hereunder and to the following further additional conditions:
(a) The If the Original Registration Statement which shall be in form and substance satisfactory or any amendment thereto filed prior to the Representative and Underwriter's CounselFirm Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment and, if the Company has elected to rely upon 462(b), the Rule 462(b) Registration Statement shall have become been declared effective not later than 12:00 p.m.the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreement the Securities has been filed with the Commission and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2), or with respect to the Original Registration Statement, or such later time and date and time as shall be have been consented to in writing by the RepresentativeRepresentatives; if required, and, at Closing Date the Prospectus or any Term Sheet that constitutes a part thereof and each Option Closing Date, if any, any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Representatives, shall be pending or contemplated by the Commission Commission; and the Company shall have complied with any request on the part of the Commission for additional information shall have been complied with (to be included in the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to or the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, Prospectus or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsotherwise).
(b) The Representative Representatives shall not have advised received an opinion, dated the Firm Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation, counsel for the Company, to the effect that:
(i) the Company and each of its subsidiaries listed in Exhibit 21 to the Registration Statement (the "Subsidiaries") have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company and the Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have corporate power to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus, and the Company has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except for directors' qualifying shares and as otherwise set forth in the Prospectus, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding capitalization as set forth in the Prospectus; all of the issued shares of capital stock of the Company (including the Option Securities) have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable federal and state securities laws and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities; the Firm Securities have been duly authorized by all necessary corporate action of the Company and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Securities have been duly included for trading on the Nasdaq National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(v) the statements set forth under the heading "Description of Securities" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company, provide a fair summary of such provisions; and the statements set forth under the headings "Business of the Company--Legal Proceedings," "Management; Certain Transactions" and "Certain Transactions" in the Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, provide a fair summary of such legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(vii) (A) no legal or governmental proceedings are pending to which the Company or any of the Subsidiaries is a party or to which the property of the Company or any of the Subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or any of the Subsidiaries or with respect to any of their respective properties and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(viii) the issuance, offering and sale of the Securities to the Underwriters by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or (B) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of the Subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or any of the Subsidiaries;
(ix) the Registration Statement is effective under the Act; any required filing of the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and 424(b) has been made in the manner and within the time period required by Rules 434 and 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or threatened or, to the best knowledge of such counsel, are contemplated by the Commission; and
(x) the Registration Statement originally filed with respect to the Securities and each amendment thereto, any Rule 462(b) Registration Statement and the Prospectus (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder.
(xi) if the Company elects to rely on Rule 434, the Prospectus is not "materially different", as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time of its effectiveness or an effective post-effective amendment thereto (including such information that is permitted to be omitted pursuant to Rule 430A). Such counsel shall also state that they have no reason to believe that the Registration Statement, or as of its effective date, contained any amendment thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omitted to state a any material fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any supplement thereto, contains an untrue statement of a material fact which, in the Representative's opinion, is material, or omitted or omits to state a material fact which, necessary in the Representative's opinion, is material and is required to be stated therein or is necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the United States, to the extent satisfactory in form and scope to counsel for the Underwriters, upon the opinion of other counsel of good standing. The foregoing opinion shall also state that the Underwriters are justified in relying upon such opinion of such other counsel of good standing, and copies of such opinion shall be delivered to the Representatives and counsel for the Underwriters. References to the Registration Statement and the Prospectus in this paragraph (b) shall include any amendment or supplement thereto at the date of such opinion.
(c) On or prior to The Representatives shall have received an opinion, dated the Firm Closing Date, of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization issuance and sale of the Company, the validity of the Firm Securities, the Registration StatementStatement and the Prospectus, the Prospectus and such other related matters as the Representatives may request reasonably require, and Underwriters' Counsel the Company shall have received furnished to such papers and information counsel such documents as they may reasonably request to enable for the purpose of enabling them to pass upon such matters.
(d) At The Representatives shall have received from Price Waterhouse LLP a letter or letters dated, respectively, the date hereof and the Firm Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counselthe Representatives, to the effect that:
(i) they are independent accountants with respect to the Company (A) has been duly organized and is validly existing as a corporation in good standing under its consolidated subsidiaries within the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets meaning of the Company. The disclosures in Act and the Registration Statement concerning the effects of federal, state and local laws, applicable rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.thereunder;
(ii) to such counsel's knowledgein their opinion, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued audited consolidated financial statements and outstanding capitalization as set forth in the Prospectus, schedules examined by them and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained included in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently Prospectus comply in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the applicable accounting requirements of the Acts Act and the Rules related published rules and Regulations.regulations;
(viiii) on the basis of a reading of the latest available interim unaudited consolidated condensed financial statements of the Company and its consolidated subsidiaries carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the best comments set forth in this paragraph (iii), a reading of such counsel's knowledgethe minute books of the shareholders, the board of directors and any committees thereof of the Company and each of its consolidated subsidiaries, and inquiries of certain officials of the Company and its consolidated subsidiaries who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to [ , 199_], nothing came to their attention that caused them to believe that:
(A) there are no agreements, contracts or other documents required by the Acts to be described unaudited consolidated condensed financial statements of the Company and its consolidated subsidiaries included in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described do not comply in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate form in all material respects and fairly represent with the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business applicable accounting requirements of the Company which (1) is required to be disclosed Act and the related published rules and regulations thereunder or are not in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, audited consolidated financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained statements included in the Registration Statement and the Prospectus;
(xB) the unaudited amounts for sales, net revenues and total and per share amounts of net income and other items included in the Registration Statement and the Prospectus do not agree with the amounts set forth in any unaudited consolidated financial statements for those same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited consolidated financial statements included in the Registration Statement and the Prospectus; and
(C) at a specific date not more than five business days prior to the date of such counsel's knowledgeletter, there were any changes in the Company is not in breach of, capital stock or in default under, any long-term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any debt of the Company may be bound and its consolidated subsidiaries or to which the property any decreases in net current assets or assets (tangible or intangible) of any stockholders' equity of the Company iand its consolidated subsidiaries, in each case compared with amounts shown on the [insert date of the most recent consolidated (condensed) balance sheet] consolidated condensed balance sheet included in the Registration Statement and the Prospectus, or for the period from [insert date one day after the date inserted above] to such specified date there were any decreases, as compared with [insert appropriate comparative period or, if no appropriate period exists, insert dollar amounts for each item], in sales, net revenues, net income before income taxes or total or per share amounts of net income of the Company and its consolidated subsidiaries [conform the above list of items to line items in financial statements and add other line items as appropriate], except in all instances for changes, decreases or increases set forth in such letter;
(iv) they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are derived from the general accounting records of the Company and its consolidated subsidiaries and are included in the Registration Statement and the Prospectus and in Exhibit 11 to the Registration Statement, and have compared such amounts, percentages and financial information with such records of the Company and its consolidated subsidiaries and with information derived from such records and have found them to be in agreement, excluding any questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma consolidated condensed financial statements included in the Registration Statement and the Prospectus, carrying out certain specified procedures that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (v), inquiries of certain officials of the Company and its consolidated who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma consolidated condensed financial statements, nothing came to their attention that caused them to believe that the unaudited pro forma consolidated condensed financial statements do not comply in form in all material respects with the applicable acco
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy in all material respects of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Overallotment Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Overallotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Overallotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Overallotment Closing Date, if any, of each of its material covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become be declared effective by the Commission not later than 12:00 p.m.5:30 P.M., New York Florida time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, and the opinion of its counsel is material, material or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, or the opinion of its counsel is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior The Company's registration statement pursuant to the Exchange Act on Form 8-A has been declared effective by the Commission.
(d) At the Closing Date and the Overallotment Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Sachs, Sax & VeithKlein, LLP, counsel to the CCompany, dated the Closing Date, or Overal▇▇▇▇▇y, dated the nt Closing Date, as the case may be, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company The Company: (A) has been dul (i) The Company: (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida with full corporate power and authority to own and operate its jurisdiction, properties and to carry on its business as set forth in the Registration Statement and Prospectus; (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly licensed or qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so licensed or qualified except where failure to be so qualify qualified or licensed would have a no material adverse effect on upon the Company); and (C) to such the best of counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, license or permit which, singly qualification which revocation or in the aggregate, if the subject of an unfavorable decision, ruling or finding, modification would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of have a material adverse effect upon the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) The Registration Statement, (ii) The Registration Statement, each Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the exhibits, financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form S-1 have been satisfied by the Company.
(iii) To the best of such counsel's (iii) To the best of such counsel's knowledge, except as described in the Prospectus, the Company does not own an equity interest of a character required to be disclosed in the Registration Statement in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the The Company has a duly (iv) To the best of such counsel's authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under the caption "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Underwriters' Purchase Option and all other securities issued the Underwriters' Option Units conform or issuable by the Company, upon issuance will conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and and, to the best knowledge of counsel, all shares of capital stock are fully paid and non-assessable; the holders thereof have no rights are not, except by reason of rescission with respect theretotheir own conduct or acts, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; , and none of such securities were issued in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder are not and will not hereunder, the Underwriters' Purchase Option to be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of sold by the Company orunder the Underwriters' Purchase Option Agreement and Underwriters, to such counsel's knowledge, agreement, document or instrument, Option Units have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform or upon issuance will conform to the description thereof contained in the Prospectus; the holders thereof will are not be subject to any liability under the laws preemptive or other similar rights of any stockholder of the State of New York as currently in effect solely as Company; that, to such holders; all corporate action required to be taken for counsel's knowledge, the authorization, issue and sale holders of the Securities has been duly and validly takenUnderwriters' Option Units shall not be personally liable for the payment of the Company's debts solely by reason of being such holders except as they may be liable by reason of their own conduct or acts; and that the certificates representing the Securities Units, Underwriters' Purchase Option and Underwriters' Option Units are in due and proper legal form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities Units to be sold by the CompanyUnderwriters against payment therefor as provided for in this Agreement, the Underwriters and (assuming they are bona fide purchasers within the holders meaning of the Representative's Warrant, as the case may be, th Uniform Commercial Code) will acquire good and marketable title to the Securities Units, free and clear of any pledgeall liens, lienencumbrances, charge, claim, encumbrance, pledgeequities, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyinterests and claims.
(ivv) Each of the Registration Statement is and the Form 8-A has been declared effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to To the best of such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against S-1 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementRegulations;
(vii) This Agreement, the Company has full legal rightUnderwriters, power Purchase Option Agreement, the Warrant Agreement between the Company, the Warrant Agent and authority to enter into this Agreement Representative and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Financial Consulting Agreement and the Representative's Warrant have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and the Representative Warrant, assuming due authorization, execution and delivery by that each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes is a legal, valid and binding agreement of the Company Underwriter, as the case may be, constitutes a legally valid and binding agreement of the Company, enforceable as against the Company in accordance with its their respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), and neither .
(viii) Neither the Company's execution or delivery by the Company of this Agreement, the Underwriters' Purchase Option Agreement, the Warrant Agreement and of or the Representative's WarrantFinancial Consulting Agreement, nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct issuance of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements theretoSecurities pursuant to this Agreement, conflicts with or will conflict with or results or will result in any material breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company except to the extent such event will not have a material adverse effect upon the Company pursuant to the terms of, (A) the certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Company, (B) to the best knowledge of such counsel, any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument that is material to the Company to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be are subject, or any indebtedness, or (C) to the best knowledge of such counsel, and except to the extent it would not have a material adverse effect on the Company, any statute, judgment, decree, order, rule or regulation applicable to the Company of or any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreignbody, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement, the Underwriters' Option Agreement for Units and the transactions contemplated hereby;
(ix) to such counsel's knowledgeFinancial Consulting Agreement by the Company, and the properties and business taking of any action by the Company conform to the description thereof contained in the Registration Statement and the Prospectuscontemplated hereby or thereby, which has not been obtained;
(x) Except as described in the Prospectus, to the best knowledge of such counsel's knowledge, the Company is not in breach of, or in default under, any material term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which any of the property or assets (tangible or intangible) of any of the Company iis subject or affected; and, to the best knowledge of counsel, the Company is not in violation of any material term or provision of its Certificate of Incorporation or By-Laws or in violation of any material franchise, license, permit, judgment, decree, order, statute, rule or regulation material to the Company business;
(xi) The statements in the Prospectus under the captions "DESCRIPTION OF BUSINESS" "MANAGEMENT," "PRINCIPAL STOCKHOLDERS," "CERTAIN TRANSACTIONS," "DESCRIPTION OF CAPITAL STOCK," and "SHARES ELIGIBLE FOR FUTURE SALE" and "RISK FACTORS" have been reviewed by such counsel, and only insofar as they refer to statements of law, descriptions of statutes, rules or regulations or legal conclusions, are correct in all material respects;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the each Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; , and the performance by the Company on and as of the each Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., 5:00 p.m. New York time, on the date subsequent to the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counselthe Representative. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and Warrants and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains shall not contain an untrue statement of a material fact which, in the Representative's opinion, is material, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement theretothereof, contains shall not contain an untrue statement of fact which, in the Representative's opinion, is materiala material fact, or omits omit to state a material fact which, in the Representative's opinion, is material and which is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization At each of the Company, the validity of the Securities, the Registration Statement, the Prospectus Effective Date and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At each Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Blau, ▇▇am▇▇, ▇▇ct▇▇▇ & Veith, counsel to the C▇ieb▇▇▇▇▇y, ▇.C. (the "Firm") counsel to the Company, dated the Effective Date and each Closing Date, respectively, addressed to the Underwriters and in form and substance satisfactory to Underwriters' CounselIAR, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its jurisdictionincorporation; (B) is duly qualified and licensed for the transaction of business and in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property and assets or the conduct of its Business makes such qualification necessary except where the failure to be so qualified does not now have and will not in the future have a Material Adverse Effect; and (Bc) has all requisite corporate power and authority, and has obtained any and all material authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (includingbodies, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the CompanyBusiness. The disclosures in the Registration Statement concerning the effects of federalFederal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct accurate in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) the Firm has not been engaged to such counsel's knowledge, perform legal services in connection with any transaction whereby the Company does not own would acquire an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, Prospectus (and any amendment or supplement thereto, ) under the heading "Capitalization", and, to such counsel's knowledge, after due inquiry" and except as set forth in the Prospectus, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued authorized; all outstanding shares of Common Stock have been fully paid for and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or and of the Representative's WarrantWarrant Agreement, will be validly issued, issued fully paid and non-assessable and assessable. The Securities conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all . All corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; . The Representative's Securities constitute valid and binding obligations of the certificates representing Company to issue and sell, upon exercise thereof and payment therefor, the Securities are in due number and proper formtype of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Warrant Agreement and the Representative's Warrant RPO of the Securities to be sold by the Companyand Representative's Securities, as applicable, the Underwriters will acquire title to the Firm Securities, and the holders of Representative will acquire title to the Representative's WarrantSecurities, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, ; (B) the purchase by the Underwriters and the Representative of the Firm Securities and the Representative's Securities, respectively, from the Company, (C) Company;(C)the consummation by the Company of any of its obligations under this Agreement, the Warrant Agreement or the RPO or (D) resales of the Firm Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is has become effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, and to such counsel's knowledge, after due inquiry, knowledge no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement or preventing the use of the preliminary prospectus or any part of any thereof has been issued and no proceedings proceeding for that purpose have has been instituted or are pending is pending, or is threatened or contemplated under the ActsAct;
(v) each counsel does not know of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and or to be filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copiesnot so described or filed; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate and fairly present in all material respects and fairly represent the information required to be shown by Form N-5presented therein; (C) to counsel's knowledge there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental governmental, legal or other proceeding (including, without limitation, limitation those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same)Company, or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects)disclosed. No Federal, (2) questions the validity of the capital stock of the Company state or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no local statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(viivi) the Company has full legal right, corporate power and authority to enter into each of this Agreement Agreement, the RPO and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Agreement and to consummate the transactions provided for contemplated therein; and each of this Agreement Agreement, the RPO and the Representative's Warrant each Agreement has been duly authorized, executed and delivered by or on behalf of the Company. This Agreement Each of this Agreement, the RPO and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights generally and the application of general equitable principles in any action, legal or equitable, and except as rights to those provisions relating to indemnity or contribution may be limited by applicable lawas to which no opinion is expressed), and neither . None of the Company's execution execution, delivery or delivery performance of this Agreement and of Agreement, the Representative's WarrantWarrant Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinRPO, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or Business will result in any breach or violation of any of the terms or provisions of, or conflicts or will conflict with or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate articles of incorporation or by-laws of the Company, ; (B) any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders shareholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or ; (Cc) any Federal, state or local statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters)body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflictsor (D) have any Material Adverse Effect on any permit, breachescertification, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consentregistration, approval, authorization consent, license or order, franchise necessary for the Company to own or lease and no filing with, operate any court, regulatory body, government agency of its properties and to conduct its Business or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance ability of the Securities pursuant Company to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated herebymake use thereof;
(ixvii) the Firm has not been engaged to such counsel's knowledgeprovide legal services with respect to, nor does the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach Firm have any knowledge of, any breach of or in a default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholdersshareholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an any obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of the Company is subject or affected. The Company is not in violation of any term or provision of its certificate of incorporation or by-laws or, to counsel's knowledge in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation;
(viii) the statements in the Prospectus under the headings "THE COMPANY", "BUSINESS", "MANAGEMENT," "PRINCIPAL STOCKHOLDERS, "SELLING SECURITY HOLDERS", "CERTAIN TRANSACTIONS", "DESCRIPTION OF SECURITIES", and "SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, except for any of the foregoing opined upon to the underwriters by counsel to the Company iother than Blau, ▇▇am▇▇, ▇▇ct▇▇▇ & ▇ieb▇▇▇▇▇, P.C.; are correct in all material respects;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they it had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.Noon, New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Representative's Warrants, the Registration Statement, the Prospectus and other related matters as the Representatives Representative may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, ; and the Company has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation and has been doing business in any jurisdiction (to material compliance with all such counsel's knowledgeauthorizations, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company)approvals, orders, licenses, certificates, franchises and permits and all federal, state and local laws, rules and regulations; to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, position, prospects, value, operation, properties, business or assets results of operations of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.;
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization" and ", and, to such counsel's knowledge, after due inquiry, Description of Securities," and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement and the Warrant Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, Company conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in or any similar rights granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Representative's Warrant Agreement and the Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Representative's Warrants and the Redeemable Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, Representative's Warrant Agreement and the Representative's Warrant Agreement of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may berespectively, will acquire good and marketable title to the such Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant)whatsoever. No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Firm Securities and the Option Securities from the Company and the purchase by the Representative of the Representative's Warrants from the Company, (C) the consummation by the Company of any of its obligations under this Agreement, the Representative's Warrant Agreement or the Warrant Agreement, or (D) resales of the Firm Securities and the Option Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of such counsel's knowledge, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1x) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2y) questions the validity of the capital stock of the Company or this Agreement or Agreement, the Representative's Warrant Agreement or the Warrant Agreement, or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse there is a reasonable possibility of a decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Representative's Warrant Agreement or the Warrant Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Representative's Warrant Agreement or the Warrant Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement and the Representative's WarrantAgreement, subject as to the Representative's Warrant of receipt of an order or exemptive relief under Agreement and the 1940 Act, Warrant Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement and Agreement, the Representative's Warrant each Agreement and the Warrant Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Representative's Warrant Agreement and the Representative WarrantWarrant Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, thereto constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither none of the Company's execution or delivery of this Agreement and of Agreement, the Representative's WarrantWarrant Agreement and the Warrant Agreement, its performance hereunder and or thereunder, its consummation of the transactions contemplated hereinherein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its respective properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any court, regulatory body, government agency or other body body, domestic or foreign (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and Prospectus, the Registration Statement, the issuance of the Representative's Warrants, the performance of this Agreement, the Representative's Warrant Agreement and the Warrant Agreement, and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach ofhas good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property stated in default underthe Prospectus to be owned or leased by it, any term in each case free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or provision other restrictions or equities of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ikind
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or and each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or and each Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder hereunder; and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriter, and, at the Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares shares of Common Stock and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriter shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's reasonable opinion, is material, or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under in which they were made not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Underwriter's reasonable opinion, is material, or omits to state a fact which, in the Underwriter's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative Underwriter shall have received from Underwriters' Counsel, Underwriter's Counsel such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and such other related matters as the Representatives Underwriter may request and Underwriters' Underwriter's Counsel shall have received such papers and information as they may request in order to enable them to pass upon such matters.
(d) At Closing Datethe time this Agreement is executed, the Underwriters Underwriter shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇, ▇▇▇▇ & Brandeis, LLP, counsel to the Company, dated the Closing Date, addressed to the Underwriters and Underwriter, in form and substance satisfactory to Underwriters' Underwriter's Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionjurisdiction of incorporation, (B) is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, and (BC) has all requisite corporate power and authority, authority (corporate and other) and has obtained any and all necessary authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates, franchises and permits obtained by it from governmental or regulatory officials and agencies and all federal, state, local and foreign laws, rules and regulations to which failure to so qualify would have a material adverse effect on the Company)it is subject; and, to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, franchise or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or affairs, prospects, stockholders' equity, value, operations, properties, business or assets results of operations of the Company. The disclosures disclosure in the Registration Statement concerning the effects of federal, state state, local and local foreign laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading therein, in light of the circumstances in which they were made., not misleading;
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, trust, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, Prospectus under "Capitalization", and, to such counsel's knowledge, after due inquiry, " and the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Underwriter's Warrant Agreement and the Warrant Agreement and as described in the Prospectus. The Securities, Securities and all other securities issued or issuable by the CompanyCompany conform, conform or when issued and paid for, will conform, in all material respects to all statements with respect thereto the descriptions thereof contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, thereto and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation violation, of the preemptive rights of any holders of any security of the Company contained in or any similar contractual right granted by the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder and under the Underwriter's Warrant Agreement and the Warrant Agreement are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrumentstockholder, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrantand thereof, will be validly issued, fully paid and non-assessable and conform to the description descriptions thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. The Underwriter's Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby. Upon the issuance and delivery pursuant to this Agreement, the Underwriter's Warrant Agreement and the Representative's Warrant Agreement of the Securities to be sold by the CompanyCompany hereunder and thereunder, the Underwriters and the holders of the Representative's Warrant, as the case may be, Underwriter will acquire good and marketable title to the Securities such Securities, free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever (except those arising out of acts or claims asserted against the Underwriters Company or any affiliate (within the holders meaning of the Representative's Warrant)Rules and Regulations) of the Company. No transfer tax is payable by or on behalf of the Underwriters Underwriter in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters Underwriter of the Securities from the Company, (C) the consummation by the Company of any of its obligations under this Agreement, the Underwriter's Warrant Agreement or the Warrant Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.;
(iv) the Registration Statement is effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, and no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or the Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or pending, threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.;
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts Act to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) other than those described in the Registration Statement and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of agreements, contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, bound are accurate in all material respects and fairly represent the information required to be shown by Form N-5SB-2; (C) there is not pending or threatened against the Company any no action, arbitration, suit, proceeding, inquiry, arbitration, investigation, litigation, litigation or governmental or other proceeding (including, without limitation, those having jurisdiction over pertaining to environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of of, the Company which (1I) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), or (2II) questions the validity of the capital stock of the Company or of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement or the Representative's Warrant Consulting Agreement or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, pending or threatened, threatened against or affecting the Company before any court or court, arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, positionbusiness affairs, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement or the Consulting Agreement or which in any manner draws into question the validity or enforceability of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement or the Consulting Agreement;
(vii) the Company has full legal right, power and authority to enter into each of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, Consulting Agreement and to consummate the transactions provided for herein and therein; and each of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement and the Representative's Warrant each Consulting Agreement has been duly authorized, executed and delivered by the Company. This Each of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement and the Representative WarrantConsulting Agreement, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Actthereto, constitutes a legal, valid and binding agreement of the Company Company, enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights obligations to indemnity indemnify or contribution contribute to losses may be limited by applicable law), and neither . None of the Company's execution or delivery of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement and of the Representative's WarrantConsulting Agreement, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinherein and therein, or the conduct of its business as described in the Registration Statement, Statement and the Prospectus, Prospectus and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, of (A) the certificate of incorporation or by-laws bylaws of the Company, (B) any license, contract, indenture, mortgage, lease, deed of trust, voting trust agreement, stockholders stockholders' agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is are or may be subject, or any indebtedness, or (C) any statute, statute applicable to the Company or (D) any judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.;
(viii) except as described in the Prospectus, no consent, approval, authorization or orderorder of, and no filing with, any arbitrator, court, regulatory body, administrative agency, government agency or other body body, domestic or foreign (other than such as may be required under Blue Sky laws"blue sky" laws and the rules of the NASD, as to which no opinion need be rendered) ), is required in connection with the issuance of the Securities pursuant to the Prospectus and Prospectus, the Registration Statement, this Agreement, the Underwriter's Warrant Agreement and the Warrant Agreement, or the performance of this Agreement, the Underwriter's Warrant Agreement, the Warrant Agreement and the Consulting Agreement and the transactions contemplated herebyhereby and thereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, ; and the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company ihas
Appears in 1 contract
Sources: Underwriting Agreement (Imatec LTD)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters hereunder shall to purchase and pay for the Securities shall, in their sole discretion, be subject to the continuing accuracy following conditions:
(a) If the registration statement originally filed with respect to the Securities or any amendment thereto filed prior to the Closing Date has not been declared effective as of the time of execution hereof, the Registration Statement or such amendment shall have been declared effective not later than 10:00 a.m., New York City time, on the date on which the amendment to the registration statement originally filed with respect to the Securities or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of the Securities has been filed with the Commission, or such later time and date as shall have been consented to by the Underwriters; if required, the Prospectus and any amendment or supplement thereto shall have been filed in accordance with Rule 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any amendment thereto or the qualification of the Indenture under the Trust Indenture Act shall have been issued and no proceedings for those purposes shall have been instituted or, to the knowledge of the Company or the Underwriters, threatened or are contemplated by the Commission; and the Company shall have complied with or satisfactorily responded to any request of the Commission for additional information.
(b) The Underwriters shall have received an opinion in form and substance satisfactory to the Underwriters, dated the Closing Date, of Brownstein, Hyatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C., counsel for the Company, substantially in the form of Exhibit A hereto.
(c) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, with respect to certain legal matters relating to this Agreement, and such other related matters as the Underwriters may require. In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York and Delaware General Corporation Law and federal law.
(d) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ LLP and Jaynes, Reitmeier, ▇▇▇▇ & Therell, P.C., a letter or letters dated, respectively, the date hereof and the Closing Date, each in form and substance satisfactory to the Underwriters.
(e) The representations and warranties of the Company herein contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed performed all covenants and declared effective in accordance with the requirements of Rule 497 of the Rules agreements and Regulations.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required satisfied all conditions on its part to be stated therein performed or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On satisfied hereunder at or prior to the Closing Date; and subsequent to the date of the most recent financial statements in the Prospectus, there shall have been no material adverse change in the business, properties, assets, operations or financial condition of the Company and the Subsidiaries, taken as a whole, except as set forth in, or contemplated by, the Representative Registration Statement and the Prospectus.
(f) The sale of the Securities by the Company hereunder shall have received from Underwriters' Counsel, such opinion not be enjoined (temporarily or opinions with respect permanently) on the Closing Date.
(g) Subsequent to the organization effective date of the Company, the validity of the Securities, the Registration Statement, there shall not have occurred any material adverse change, or any event that would have a material adverse effect on the Prospectus business, properties, assets, operations or financial condition of the Company and other related matters the Subsidiaries, taken as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such mattersa whole.
(dh) At Closing DateSubsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except in each case as described in or as contemplated by the Prospectus, none of the Company or any of the Subsidiaries shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, properties, assets, operations or financial condition of the Company and the Subsidiaries, taken as a whole, and, other than as contemplated by the Prospectus, there shall not have been any change in the capital stock or long-term indebtedness of the Company or the Subsidiaries that is material to the business, properties, assets, operations or financial condition of the Company and the Subsidiaries, taken as a whole.
(i) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the conduct of the business and operations of the Company or any of the Subsidiaries has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of the Company or any of the Subsidiaries have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not have a material adverse effect on the business, properties, assets, operations or financial condition of the Company and the Subsidiaries, taken as a whole.
(j) The Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇ya certificate, dated the Closing Date, addressed to signed on behalf of the Underwriters Company by its Chief Executive Officer or President, and in form and substance satisfactory to Underwriters' Counselthe Chief Financial Officer of the Company, on behalf of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects as of the date hereof and as if made on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied hereunder all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(Aii) No stop order suspending the effectiveness of the Registration Statement or any amendment thereto or the qualification of the Indenture under the Trust Indenture Act has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdictionissued, and no proceedings for those purposes have been instituted or, to the knowledge of the Company, threatened or are contemplated by the Commission;
(Biii) Subsequent to the effective date of the Registration Statement, there has all requisite corporate power and authoritynot occurred any event or events that, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental individually or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledgeaggregate, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business assets, operations or assets financial condition of the Company. The disclosures in Company and the Registration Statement concerning the effects of federalSubsidiaries, state and local laws, rules and regulations on the Company's business taken as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entitywhole;
(iiiiv) Subsequent to the Company has a duly authorized, issued and outstanding capitalization respective dates as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company of which information is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained given in the Registration Statement and the Prospectus. All issued and outstanding securities , except in each case as described in or as contemplated by the Prospectus, none of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws or any of the State Subsidiaries has incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of New York business) that are material to the Company and the Subsidiaries, taken as currently a whole, or entered into any transactions not in effect by reason the ordinary course of being such holders; and none of such securities were issued in violation of business that are material to the preemptive rights of any holders of any security business, properties, assets, operations or financial condition of the Company contained and the Subsidiaries, taken as a whole, and, other than as contemplated by the Prospectus, there shall not have been any change in the certificate of incorporation capital stock or long-term indebtedness of the Company oror the Subsidiaries that is material to the business, to such counsel's knowledgeproperties, any agreementassets, document operations or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation financial condition of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the CompanySubsidiaries, the Underwriters and the holders of the Representative's Warrant, taken as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Actsa whole;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) Subsequent to the best respective dates as of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described which information is given in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its the business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation operations of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities the Subsidiaries has not been interfered with by strike, fire, flood, hurricane, accident or propertiesother calamity (whether or not insured) or by any court or governmental action, order or decree, and, except for conflictsas otherwise stated therein, breachesthe properties of the Company or any of the Subsidiaries have not sustained any loss or damage (whether or not insured) as a result of such occurrence, violationsexcept any such interference, defaults, creations loss or impositions damage which do not and would not have a material adverse effect on the Company.business, properties, assets, operations or financial condition of the Company and the Subsidiaries, taken as a whole; and
(viiivi) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance The sale of the Securities pursuant by the Company hereunder has not been enjoined (temporarily or permanently). On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such further documents, opinions, certificates and schedules or instruments relating to the Prospectus business, corporate, legal and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business financial affairs of the Company conform as they shall have heretofore reasonably requested from the Company. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the description thereof contained Underwriters and counsel for the Underwriters. The Company shall furnish to the Underwriters such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iUnderwriters shall reasonably request.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Shares, as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company, with respect to the Shares to be purchased from the Company, and each of the Selling Stockholders, with respect to the Shares to be purchased from the Selling Stockholders, herein contained, as of the date hereof, as of the Closing Date and, with respect to the Additional Shares, the accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Additional Closing Date, if any(ii) the absence from any certificates, as if they had been made on and as of the Closing Date opinions, written statements or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made letters furnished pursuant to the provisions hereof; and this Section 10 to you or to Underwriters' Counsel of any qualification or limitation not previously approved in writing by you, (iii) the performance by the Company on and as each of the Closing Date and each Option Closing Date, if any, Selling Stockholders of its covenants and their respective obligations hereunder and to (iv) the following further additional conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 p.m.5:00 P.M., New York City time, on the date of this Underwriting Agreement or at such later time and date and time as shall be have been consented to in writing by Bear, ▇▇▇▇▇▇▇. All post-effective amendments to the RepresentativeRegistration Statement shall have become effective. If the Company shall have relied upon Rule 430A of the Regulations, and, at Closing Date the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 7(a) hereof. All filings required by Rule 424 of the Regulations shall have been made and each Option Closing Date, if any, no such filings shall have been made without your consent. No stop order suspending the effectiveness of the Registration Statement or any post- effective amendment thereof shall have been issued by the Commission or any state securities commission and no proceedings for that purpose therefor shall have been instituted initiated or shall be pending or contemplated threatened by the Commission and or any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 of the Rules and Regulationsstate securities commission.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to At the Closing DateDate (and, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the CompanyAdditional Shares, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Additional Closing Date), the Underwriters you shall have received the favorable written opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Datedate of its delivery, addressed to the Underwriters Underwriters, and in form and substance scope satisfactory to Underwriters' Counsel, to the effect that:
(i) Each of the Company and the domestic subsidiaries listed in Schedule III hereto (Athe "Material Domestic Subsidiaries") (x) has ------------ been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, jurisdiction of incorporation and (By) has all requisite corporate power and authority, and has obtained any and all authorizationsnecessary consents, approvals, authorizations, orders, licensesregistrations, certificatesfilings, franchises qualifications, licenses and permits of and from all public, regulatory or governmental or regulatory officials agencies and bodies (includingbodies, without limitationto own, those having jurisdiction over environmental or similar matters), materially necessary to own or lease and license its respective properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus; , except for those the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice absence of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state have a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were madeMaterial Adverse Effect.
(ii) to such counsel's knowledge, The authorized capital stock of the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization is as set forth in the Prospectus, and any amendment or supplement thereto, Prospectus under the caption "Capitalization". All of the outstanding shares of such capital stock have been duly and validly authorized and issued, are fully paid and nonassessable and were not issued in violation of or subject to any preemptive rights. The shares of Common Stock to be outstanding on the Closing Date, including the Shares, have been duly authorized and when issued (and, in the case of the Shares, delivered and sold in accordance with the terms of this Underwriting Agreement) will be validly issued, fully paid and nonassessable. Upon delivery of and payment for the Shares to such counsel's knowledge, after due inquiry, be sold by the Company to each Underwriter in accordance with this Underwriting Agreement, each Underwriter (assuming that it acquires such Shares without notice of any adverse claim, as such term is not a party used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York) will acquire good and marketable title to or bound by any instrumentthe Shares so sold and delivered to it, agreement free and clear of all liens, pledges, charges, claims, security interests, restrictions on transfer, agreements or other arrangement providing for it to issue defects of title whatsoever (other than those resulting from any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectusaction taken by such Underwriter). The Securities, and all other securities issued or issuable by capital stock of the Company, conform Company conforms in all material respects to all statements with respect thereto the description thereof contained in the Registration Statement and the Prospectus.
(iii) The Company has all requisite corporate right, power and authority to execute, deliver and perform its obligations under this Underwriting Agreement and to issue, sell and deliver the Shares in accordance with the terms and conditions hereof. All issued and outstanding securities of the Company have This Underwriting Agreement has been duly authorized and validly issued authorized, executed and are fully paid and non-assessable; delivered by the holders thereof have no rights Company.
(iv) To the best of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, no consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any agreementcourt or any public, document governmental, or instrument. The Securities to be sold by regulatory agency or body having jurisdiction over the Company hereunder are not or any Material Domestic Subsidiary or any of its respective properties or assets is required for the Company's execution and will not be subject to any preemptive or other similar rights delivery of, and its performance of any stockholder contained in its obligations under, this Underwriting Agreement, and the certificate of incorporation consummation of the Company ortransactions contemplated hereby, to such counsel's knowledgeincluding, agreementwithout limitation, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorizationissuance, issue sale and sale delivery of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the CompanyShares, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with for (A) such as may be required under state securities or "Blue Sky" laws and the issuance by the Company securities laws of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities foreign jurisdictions in connection with the purchase and distribution contemplated hereby.
of the Shares by the Underwriters (ivas to which such counsel need express no opinion) the Registration Statement is effective and (B) such as have been made or obtained under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending Exchange Act or the use rules of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;Nasdaq Stock Market.
(v) each of the Preliminary Prospectus, the The Registration Statement, Statement and the Prospectus and any amendments or supplements thereto (other than except for the financial statements and the notes thereto, the financial statement schedules and the other financial and statistical accounting data included therein, as to which no opinion need be renderedexpressed) comply as to form in all material respects with the requirements of the Acts Act and the Rules and Regulations.
(vi) The Registration Statement has become effective under the Act, and such counsel is not aware of any stop order suspending the effectiveness of the Registration Statement and to such counsel's knowledge no proceedings therefor have been initiated or threatened by the Commission, and there are no other filings on the part of the Company required by the Act or the Regulations, including those required by Rule 424(b) of the Regulations, that to such counsel's knowledge have not been made.
(vii) The Company is not an "investment company" or a company "controlled" by an "investment company" as defined in the Investment Company Act. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent certified public accountants of the Company, representatives of the Underwriters and Underwriters' Counsel at which the contents of the Registration Statement, the Prospectus and any amendments thereof or supplements thereto and related matters were discussed and, although such counsel has not undertaken to investigate or verify independently and are not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus or any amendments thereof or supplements thereto (except as to matters referred to in the last sentence of clause (ii) above), no facts have come to such counsel's attention which lead such counsel to believe that the Registration Statement, on the effective date thereof (or any post- effective amendment thereof as of the date of such amendment), contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, on the date thereof or the date of such opinion, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no view with respect to the best financial statements and related notes, the financial statement schedules and the other financial and accounting data included therein). In rendering such opinion, such counsel (i) may limit its opinions to the corporate laws of the State of Delaware, the laws of the State of New York and the federal laws of the United States of America, and (ii) may rely (A) as to matters involving the application of laws other than the laws of the State of New York and the corporate laws of the State of Delaware and the federal laws of the United States of America, to the extent such counsel deems proper and to the extent specified in such opinion letter, if at all, upon a written opinion or opinions (in form and scope reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the applicable laws; and (B) as to matters of fact, to the extent such counsel may deem proper, on certificates of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and its subsidiaries. The opinion of such counsel shall specifically state that the opinion of any such other counsel is in form and scope satisfactory to such counsel and, in such counsel's opinion, such counsel and you are justified in relying thereon. A copy of the opinion of any such other counsel shall be delivered to Underwriters' Counsel.
(c) At the Closing Date (and, with respect to the Additional Shares, the Additional Closing Date), you shall have received the written opinion of the General Counsel of the Company, dated the date of its delivery, addressed to the Underwriters, and in form and scope satisfactory to Underwriters' Counsel, to the effect that:
(i) Each of the Company and the Material Domestic Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing that will not in the aggregate have a Material Adverse Effect. All of the issued and outstanding capital stock (or similar interests) of each Material Domestic Subsidiary has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of or subject to any preemptive rights and is owned by the Company or one of its subsidiaries, free and clear of all claims, liens, security interests, pledges, charges, encumbrances, stockholders agreements and voting trusts, except as otherwise described in Schedule III to this Underwriting Agreement. ------------
(ii) The shares of Common Stock to be outstanding on the Closing Date, including the Shares, will not have been issued in violation of or be subject to any preemptive rights. To such counsel's knowledge, (A) there are is no agreementsoutstanding option, contracts warrant or other documents required right calling for the issuance of any share of capital stock (or similar interests) of the Company or of any of its subsidiaries or any security or other instrument that by its terms is convertible into, exercisable for or exchangeable for capital stock (or similar interests) of the Acts to be Company or any subsidiary, except as described in the Registration Statement and the Prospectus Prospectus.
(iii) The Company's execution and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits theretodelivery of, and the exhibits which have been filed are correct copies its performance of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under under, this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Underwriting Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated hereinthereby, or do not and, when such performance is required pursuant to the conduct of its business as described in the Registration Statementterms thereof, the Prospectus, and any amendments or supplements thereto, conflicts with or will not (A) conflict with or results or will result in any a breach or violation of any of the terms or and provisions of, or constitutes or will constitute a default under (or an event that with notice or lapse of time, or both, would constitute a default under) or require approval or consent under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect charge or other restriction or equity of any kind whatsoever upon, encumbrance upon any property or assets (tangible or intangible) of the Company or any of its subsidiaries pursuant to the terms ofof any Material Contract or any Material Permit, (A) except for those conflicts, breaches or defaults for which consent or approval has been obtained by the certificate of incorporation or by-laws of Company prior to the Companydate hereof, (B) violate or conflict with any licenseprovision of the certificate of incorporation, contract, indenture, mortgage, deed by- laws or similar governing instruments of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement the Company or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtednessMaterial Domestic Subsidiary, or (C) to such counsel's knowledge, violate or conflict with any statute, judgment, decree, order, statute, rule or regulation applicable to the Company of any arbitratorcourt or any public, court, governmental or regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any Material Domestic Subsidiary or any of its activities respective properties or propertiesassets, except for conflictsexcept, breaches, violations, defaults, creations or impositions which do not with respect to clauses (A) and would not have a material adverse effect on the Company.
(viiiC) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company isubparagraph
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder shall be subject to the continuing accuracy in all material respects of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Overallotment Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Overallotment Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Overallotment Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Overallotment Closing Date, if any, of each of its material covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become be declared effective by the Commission not later than 12:00 p.m.5:30 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriters, and, at Closing Date and each Option Overallotment Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated to the knowledge of the Company by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriters shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, and the opinion of its counsel is material, material or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's reasonable opinion, or the opinion of its counsel is material, or omits to state a fact which, in the Representative's reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior The Company's registration statement pursuant to the Exchange Act on Form 8-A has been declared effective by the Commission.
(d) At the Closing Date and the Overallotment Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg Ellenoff, Grossman, Schole & VeithCyruli, LLP, special securities counsel to the C▇▇▇▇▇yCompany, dated the Closing Date, or Overallotment Closing Date, as the case may be, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company The Company: (A) has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its jurisdiction, properties and to carry on its business as set forth in the Registration Statement and Prospectus; (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not duly licensed or qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so licensed or qualified except where failure to be so qualify qualified or licensed would have a no material adverse effect on upon the Company); and (C) to such the best of counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, license or permit which, singly qualification which revocation or in the aggregate, if the subject of an unfavorable decision, ruling or finding, modification would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of have a material adverse effect upon the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) The Registration Statement, each Preliminary Prospectus that has been circulated and the Prospectus and any post-effective amendments or supplements thereto (other than the exhibits, financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form SB-2 have been satisfied by the Company.
(iii) To the best of such counsel's knowledge, except as described in the Prospectus, the Company does not own an equity interest of a character required to be disclosed in the Registration Statement in any other corporation, partnership, joint venture, trust or other business entity;
(iiiiv) the The Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement theretoProspectus as of the date indicated therein, under the caption "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, Underwriters' Purchase Option and all other securities issued the Underwriters' Option Units conform or issuable by the Company, upon issuance will conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and and, to the best knowledge of counsel, all shares of capital stock are fully paid and non-assessable; the holders thereof have no rights are not, except by reason of rescission with respect theretotheir own conduct or acts, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; , and none of such securities were issued in violation of the preemptive rights of any holders holder of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrumentCompany. The Securities to be sold by the Company hereunder are not and will not hereunder, the Underwriters' Purchase Option to be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of sold by the Company or, to such counsel's knowledge, agreement, document or instrument, under the Underwriters' Purchase Option Agreement and Underwriters' Option Units have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warranthereof, will be validly issued, fully paid and non-assessable and conform or upon issuance will conform to the description thereof contained in the Prospectus; the holders thereof will are not be subject to any liability under the laws preemptive or other similar rights of any stockholder of the State of New York as currently in effect solely as Company; that, to such holders; all corporate action required to be taken for counsel's knowledge, the authorization, issue and sale holders of the Securities has been duly and validly takenUnderwriters' Option Units shall not be personally liable for the payment of the Company's debts solely by reason of being such holders except as they may be liable by reason of their own conduct or acts; and that the certificates representing the Securities are in Units, Underwriters' Pur▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇' ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ due and proper legal form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities Units to be sold by the CompanyUnderwriters against payment therefor as provided for in this Agreement, the Underwriters and (assuming they are bona fide purchasers within the holders meaning of the Representative's Warrant, as the case may be, Uniform Commercial Code) will acquire good and marketable title to the Securities Units, free and clear of any pledgeall liens, lienencumbrances, charge, claim, encumbrance, pledgeequities, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated herebyinterests and claims.
(ivv) Each of the Registration Statement is and the Form 8-A has been declared effective under the ActsAct, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the ActsAct;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to To the best of such counsel's knowledge, (A) there are no agreements, material contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of regarding such material contracts and or other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against SB-2 and the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (Rules and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this AgreementRegulations;
(vii) This Agreement, the Company has full legal rightUnderwriters' Purchase Option Agreement, power the Warrant Agreement between the Company, the Warrant Agent and authority to enter into this Agreement Representative and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Financial Consulting Agreement and the Representative's Warrant have each has been duly and validly authorized, executed and delivered by the Company. This Agreement , and the Representative Warrant, assuming due authorization, execution and delivery by that each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes is a legal, valid and binding agreement of the Company Underwriter, as the case may be, constitutes a legally valid and binding agreement of the Company, enforceable as against the Company in accordance with its their respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' creditors rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable lawlaw or pursuant to public policy), and neither .
(viii) Neither the Company's execution or delivery by the Company of this Agreement, the Underwriters' Purchase Option Agreement, the Warrant Agreement and of or the Representative's WarrantFinancial Consulting Agreement, nor its performance hereunder and or thereunder, nor its consummation of the transactions contemplated hereinherein or therein, or nor the conduct issuance of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements theretoSecurities pursuant to this Agreement, conflicts with or will conflict with or results or will result in any material breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company except to the extent such event will not have a material adverse effect upon the Company pursuant to the terms of, (A) the certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Company, (B) to the best knowledge of such counsel, any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument that is material to the Company to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be are subject, or any indebtedness, or (C) to the best knowledge of such counsel, and except to the extent it would not have a material adverse effect on the Company, any statute, judgment, decree, order, rule or regulation applicable to the Company of or any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreignbody, having jurisdiction over the Company or any of its respective activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viiiix) except as described in the Prospectus, no No consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky state securities laws, as to which no opinion need be rendered) is required in connection with the issuance by the Company of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement, the Underwriters' Option Agreement for Units and the transactions contemplated hereby;
(ix) to such counsel's knowledgeFinancial Consulting Agreement by the Company, and the properties and business taking of any action by the Company conform to the description thereof contained in the Registration Statement and the Prospectuscontemplated hereby or thereby, which has not been obtained;
(x) Except as described in the Prospectus, to the best knowledge of such counsel's knowledge, the Company is not in breach of, or in default under, any material term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which any of the property or assets (tangible or intangible) of any of the Company iis subject or affected; and, to the best knowledge of counsel, the Company is not in violation of any material term or provision of its Certificate of Incorporation or By-Laws or in violation of any material franchise, license, permit, judgment, decree, order, statute, rule or regulation material to the Company business;
(xi) The statements in the Prospectus under the captions "DESCRIPTION OF BUSINESS" "MANAGEMENT," "PRINCIPAL STOCKHOLDERS," "CERTAIN TRANSACTIONS," "DESCRIPTION OF CAPITAL STOCK," and "SHARES ELIGIBLE FOR FUTURE SALE" and "RISK FACTORS" have been reviewed by such counsel, and only insofar as they refer to statements of law, descriptions of statutes, rules or regulations or legal conclusions, are correct in all material respects;
Appears in 1 contract
Sources: Underwriting Agreement (Biodelivery Sciences International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder shall be subject to the continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; the accuracy on and as of the Closing Date or Option Closing Date, if any, of the statements of the officers of the Company made pursuant to the provisions hereof; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and obligations hereunder and to the following further conditions:
(a) The Registration Statement which shall be in form and substance satisfactory to the Representative and Underwriter's Counsel, shall have become effective not later than 12:00 5:00 p.m., New York City time, on the date prior to the date of this Agreement or such later date and time as shall be consented to in writing by the RepresentativeUnderwriter, and, at Closing Date and each Option Closing Date, if any, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Underwriters' Underwriter's Counsel. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497 424(b) of the Rules and Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Representative Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 497 430A of the Rules and Regulations.
(b) The Representative Underwriter shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the RepresentativeUnderwriter's opinion, is material, or omits to state a fact which, in the RepresentativeUnderwriter's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may request and Underwriters' Counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(d) At Closing Date, the Underwriters shall have received the favorable opinion of Stursberg & Veith, counsel to the C▇▇▇▇▇y, dated the Closing Date, addressed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction, and (B) has all requisite corporate power and authority, and has obtained any and all authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including, without limitation, those having jurisdiction over environmental or similar matters), materially necessary to own or lease its properties and conduct its business as described in the Prospectus; the Company is not qualified as a foreign corporation in any jurisdiction (to such counsel's knowledge, there being no jurisdiction in which failure to so qualify would have a material adverse effect on the Company); to such counsel's knowledge, the Company has not received any notice of proceedings relating to the revocation or modification of any such authorization, approval, order, license, certificate, franchise, or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, operations, condition, financial or otherwise, or the earnings, business affairs or prospects, properties, business or assets of the Company. The disclosures in the Registration Statement concerning the effects of federal, state and local laws, rules and regulations on the Company's business as currently conducted and as contemplated are correct in all material respects and do not omit to state a fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made.
(ii) to such counsel's knowledge, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(iii) the Company has a duly authorized, issued and outstanding capitalization as set forth in the Prospectus, and any amendment or supplement thereto, under "Capitalization", and, to such counsel's knowledge, after due inquiry, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement and as described in the Prospectus. The Securities, and all other securities issued or issuable by the Company, conform in all material respects to all statements with respect thereto contained in the Registration Statement and the Prospectus. All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability under the laws of the State of New York as currently in effect by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company contained in the certificate of incorporation of the Company or, to such counsel's knowledge, any agreement, document or instrument. The Securities to be sold by the Company hereunder are not and will not be subject to any preemptive or other similar rights of any stockholder contained in the certificate of incorporation of the Company or, to such counsel's knowledge, agreement, document or instrument, have been duly authorized and, when issued, paid for and delivered in accordance with the terms hereof or the Representative's Warrant, will be validly issued, fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the holders thereof will not be subject to any liability under the laws of the State of New York as currently in effect solely as such holders; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form. Upon the issuance and delivery pursuant to this Agreement and the Representative's Warrant of the Securities to be sold by the Company, the Underwriters and the holders of the Representative's Warrant, as the case may be, will acquire good and marketable title to the Securities free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest, or other restriction or equity of any kind whatsoever (except those arising out of acts or claims against the Underwriters or the holders of the Representative's Warrant). No transfer tax is payable by or on behalf of the Underwriters in connection with (A) the issuance by the Company of the Securities, (B) the purchase by the Underwriters of the Securities from the Company, (C) consummation by the Company of any of its obligations under this Agreement, or (D) resales of the Securities in connection with the distribution contemplated hereby.
(iv) the Registration Statement is effective under the Acts, and, if applicable, filing of all pricing information has been timely made in the appropriate form under Rule 430A, and, to such counsel's knowledge, after due inquiry, no stop order suspending the use of the Preliminary Prospectus, the Registration Statement or Prospectus or any part of any thereof or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the Acts;
(v) each of the Preliminary Prospectus, the Registration Statement, and the Prospectus and any amendments or supplements thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Acts and the Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no agreements, contracts or other documents required by the Acts to be described in the Registration Statement and the Prospectus and filed as exhibits to the Registration Statement other than those described in the Registration Statement (or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein) and the Prospectus and filed as exhibits thereto, and the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound, incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form N-5; (C) there is not pending or threatened against the Company any action, arbitration, suit, proceeding, inquiry, investigation, litigation, governmental or other proceeding (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, pending or threatened against (or circumstances that may give rise to the same), or involving the properties or business of the Company which (1) is required to be disclosed in the Registration Statement which is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all respects), (2) questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant or of any action taken or to be taken by the Company pursuant to or in connection with any of the foregoing; (D) no statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required; and (E) except as disclosed in the Prospectus, there is no action, suit or proceeding pending, or threatened, against or affecting the Company before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which an adverse decision which may result in a material adverse change in the condition, financial or otherwise, or the earnings, position, prospects, stockholders' equity, value, operation, properties, business or results of operations of the Company, which could materially adversely affect the present or prospective ability of the Company to perform its obligations under this Agreement or which in any manner draws into question the validity or enforceability of this Agreement;
(vii) the Company has full legal right, power and authority to enter into this Agreement and the Representative's Warrant, subject as to the Representative's Warrant of receipt of an order or exemptive relief under the 1940 Act, and to consummate the transactions provided for therein; and this Agreement and the Representative's Warrant each has been duly authorized, executed and delivered by the Company. This Agreement and the Representative Warrant, assuming due authorization, execution and delivery by each other party hereto and, with respect to the Representative's Warrant, the receipt of an order or exemptive relief under the 1940 Act, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law), and neither the Company's execution or delivery of this Agreement and of the Representative's Warrant, its performance hereunder and thereunder, its consummation of the transactions contemplated herein, or the conduct of its business as described in the Registration Statement, the Prospectus, and any amendments or supplements thereto, conflicts with or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitutes or will constitute a default under, or result in the creation or imposition of any lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction or equity of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of, (A) the certificate of incorporation or by-laws of the Company, (B) any license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound or to which any of its properties or assets (tangible or intangible) is or may be subject, or any indebtedness, or (C) any statute, judgment, decree, order, rule or regulation applicable to the Company of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including, without limitation, those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of its activities or properties, except for conflicts, breaches, violations, defaults, creations or impositions which do not and would not have a material adverse effect on the Company.
(viii) except as described in the Prospectus, no consent, approval, authorization or order, and no filing with, any court, regulatory body, government agency or other body (other than such as may be required under Blue Sky laws, as to which no opinion need be rendered) is required in connection with the issuance of the Securities pursuant to the Prospectus and the Registration Statement, the performance of this Agreement and the transactions contemplated hereby;
(ix) to such counsel's knowledge, the properties and business of the Company conform to the description thereof contained in the Registration Statement and the Prospectus;
(x) to such counsel's knowledge, the Company is not in breach of, or in default under, any term or provision of any license, contract, indenture, mortgage, installment sale agreement, deed of trust, lease, voting trust agreement, stockholders' agreement, partnership agreement, note, loan or credit agreement or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which any of the Company may be bound or to which the property or assets (tangible or intangible) of any of the Company iUnderwriter's
Appears in 1 contract
Sources: Underwriting Agreement (Rollerball International Inc)