Conditions of Placement Agent’ Obligations. The obligations of the Placement Agent hereunder to cause the Closing to occur are subject to the fulfillment, at or before the Closing, of the following additional conditions: (a) Each of the representations and warranties made by the Company shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date or time, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date or time, as applicable. (b) The Company and the investors shall have entered into the Securities Purchase Agreements and the Registration Rights Agreement and the other Offering Documents, in form and substance reasonably satisfactory to the Placement Agent, and such agreements shall be in full force and effect. (c) The Company shall have performed and complied in all material respects with all agreements and covenants required to be performed by it as contained herein, and the Company shall have performed and complied in all material respects with all agreements and covenants required to be performed by it as contained in the Securities Purchase Agreements, at or before the Closing, including, without limitation, the Company obtaining all necessary consents in connection with the transactions contemplated herein and in the Securities Purchase Agreements. (d) The Placement Agent shall have received a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, certifying as to the fulfillment of the conditions set forth in subparagraphs (a) and (c) above. (e) The Company shall have delivered to the Placement Agent: (i) a good standing certificate dated as of a date within 10 days prior to the Closing Date from the secretary of state of its jurisdiction of incorporation; and (ii) resolutions of the Company’s Board of Directors approving this Agreement and the transactions contemplated by this Agreement, certified by the Chief Executive Officer of the Company. (f) The Company shall deliver to the Placement Agent a signed opinion of counsel to the Company, substantially in the form annexed hereto as Exhibit B. (g) All proceedings taken at or prior to the Closing in connection with the authorization, issuance and sale of the Securities will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents and certificates as it may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
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Conditions of Placement Agent’ Obligations. The obligations of the Placement Agent hereunder to cause the Closing to occur are subject to the fulfillment, accuracy of the representations and warranties on the part of the Company on the date hereof and at or before the Closing, time of purchase and the performance by the Company of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) Each of the representations and warranties made by the The Company shall be true and correct in all material respects at all times prior to and on the Closing Date, except furnish to the extent any such representation or warranty expressly speaks as Placement Agent at the time of purchase an earlier date or timeopinion of Paul, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date or timeHastings, as applicable.
(b) The Company and J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel for the investors shall have entered into the Securities Purchase Agreements and the Registration Rights Agreement and the other Offering DocumentsCompany, in form and substance reasonably satisfactory addressed to the Placement Agent, and such agreements dated the time of purchase, in form and substance satisfactory to Dechert LLP, counsel for the Placement Agent, in the form set forth in Exhibit C;
(b) The Placement Agent shall be have received at the time of purchase an opinion of J▇▇▇▇ Day, intellectual property counsel for the Company, addressed to the Placement Agent, and dated the time of purchase, in full force form and effect.substance satisfactory to Dechert LLP, counsel for the Placement Agent, in the form set forth in Exhibit D;
(c) The Company Placement Agent shall have performed and complied in all material respects with all agreements and covenants required received at the time of purchase an opinion of J ▇ ▇▇▇▇ & Co., European intellectual property counsel for the Company, addressed to be performed by it as contained hereinthe Placement Agent, and dated the Company shall have performed time of purchase, in form and complied in all material respects with all agreements and covenants required substance satisfactory to be performed by it as contained in Dechert LLP, counsel for the Securities Purchase Agreements, at or before the Closing, including, without limitation, the Company obtaining all necessary consents in connection with the transactions contemplated herein and in the Securities Purchase Agreements.Placement Agent;
(d) The Placement Agent shall have received a certificate from J.▇. ▇▇▇▇ LLP, Deloitte & Touche LLP and G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated, respectively, the date of this Agreement and the Chief Executive Officer time of the Companypurchase, dated as of the Closing Date, certifying as and addressed to the fulfillment of Placement Agent in the conditions set forth in subparagraphs (a) and (c) above.forms heretofore approved by the Placement Agent;
(e) The On or prior to the date hereof, the Company shall have delivered furnished to the Placement Agent: (i) a good standing certificate dated as Agent an agreement in the form of a date within 10 days prior to the Closing Date Exhibit B hereto from the secretary of state of its jurisdiction of incorporation; each director and (ii) resolutions executive officer of the Company’s Board Company and Perseus-S▇▇▇▇ Biopharmaceutical Fund, LP, and such agreement shall be in full force and effect at the time of Directors approving this Agreement and the transactions contemplated by this Agreement, certified by the Chief Executive Officer of the Company.purchase;
(f) The Placement Agent shall have received at the time of purchase an opinion of Dechert LLP, counsel for the Placement Agent, dated the time of purchase, in form and substance reasonably acceptable to the Placement Agent;
(g) Prior to the time of purchase, no Prospectus or amendment or supplement to the Registration Statement or the Prospectus, including documents deemed to be incorporated by reference therein, shall have been filed to which the Placement Agent reasonably objects in writing;
(h) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act on or before 8:30 a.m., New York time, on the first business day following execution of this Agreement;
(i) Prior to the time of purchase, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement (taking into account the documents incorporated by reference therein) shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Disclosure Package and Prospectus (taking into account the documents incorporated by reference therein) shall not contain an untrue statement of a 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 are made, not misleading;
(j) Between the time of execution of this Agreement and the time of purchase, no material adverse change in the business, properties, management, financial condition or results of operations of the Company shall occur;
(k) The Company will, at the time of purchase, deliver to the Placement Agent a signed opinion certificate of counsel to the Company, substantially its Chief Executive Officer and its Chief Financial Officer in the form annexed hereto attached as Exhibit B.E hereto; and
(gl) All proceedings taken at or prior to the Closing in connection with the authorization, issuance and sale of the Securities will be reasonably satisfactory in form and substance The Company shall have furnished to the Placement Agent and its counsel, and such counsel shall have been furnished with all such other documents and certificates as it the Placement Agent may reasonably request upon reasonable prior notice in connection with the transactions contemplated herebyrequest.
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