Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions: (a) On or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent. (b) On the date of the Memorandum and the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since the respective dates as of which information is given in the Memorandum, there will not have been any material adverse change in the financial condition, results of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum. (c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application. (d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel. (e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date. (f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date. (g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent. (h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent. (j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent. (k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agency Agreement (Peregrine Industries Inc)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, to the following further condition that during the Subscription Period, no proceedings shall be initiated or threatened by the Commission or any state securities commission or similar body against the Company and to the following additional conditions:
(a) On The Placement Agent shall not have disclosed in writing to the Company that the Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel to the Placement Agent, is material, or omits to state a fact which, in the opinion of such 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 are made, not misleading.
(b) Between the date hereof and each Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(c) Between the date hereof and each Closing Date, except as disclosed in or contemplated by the Memorandum, there shall be no material litigation instituted or threatened against the Company and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations or financial condition or operating results of the Company.
(d) Except as contemplated herein or as set forth in or contemplated by the Memorandum or supplement or amendment thereto, during the period subsequent to the date of the Memorandum and prior to each Closing Date, (i) the Company (A) shall have conducted its business in all material respects in the usual and ordinary manner as the same was being conducted on the date of the filing of the Memorandum, and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its material assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise.
(e) The authorization of the Shares, Memorandum and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Placement Agent, who shall have received on each Closing Date such favorable opinion of legal counsel addressed to the Placement Agent, it being understood that the opinion will provide, among other things, that upon payment and issuance of the common stock, such shares shall be deemed validly issued, fully paid and non-assessable.
(f) The Company shall have furnished to the Placement Agent a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated as of each Closing Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of such Closing Date, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.;
(bii) On the date of the Memorandum and the Closing Date (i) The respective officers have each carefully examined the Memorandum and any amendments or and supplements thereto, and to the best of their knowledge the Memorandum and any amendments and supplements thereto will contain and all material statements which contained therein are required to be stated therein in accordance with the Act true and the Regulations and will conform correct in all material respects to the requirements of the Act and the Regulationsrespects, and neither the Memorandum nor any amendment or supplement thereto will contain includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in light of the circumstances under which they were are made; , not misleading and, since the effective date of the Memorandum, there has occurred no event required to be set forth in an amended or supplemented Memorandum which has not been so set forth.
(iiiii) Except as set forth in or contemplated by the Memorandum since the respective dates as of which or periods for which information is given in the Memorandum, Memorandum and prior to the date of such certificate (A) there will has not have been any material adverse change change, financial or otherwise, in the financial condition, results of operations affairs or affairs condition of the Company from that set forth and (B) the Company has not incurred any material liabilities, direct or contemplated in the Memorandumcontingent, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Companyany material transactions, other otherwise than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed furnished to the Placement Agent at each Closing Date, a transfer agent cold comfort letter and such other certificates, additional to those specifically mentioned herein, as the Placement Agent may have reasonably requested as to (A) the accuracy and completeness, in all material respects, of (i) any statement in the Memorandum, or in any amendment or supplement thereto; or (ii) the representations and warranties of the Company herein; (B) the performance by the Company in all material respects of its obligations hereunder, or (C) the fulfillment of the conditions concurrent and precedent to its obligations hereunder, which are required to be performed or fulfilled on or prior to each Closing Date. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel to the Placement Agent.
(h) , whose approval shall not be unreasonably withheld. The Company Placement Agent reserves the right to waive any of the conditions herein set forth. If a condition specified in this Section shall not have entered into employment agreements reasonably satisfactory been fulfilled in any material respect when and as required to be fulfilled, this Agreement may be terminated by the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign by written notice to the Company all rights at any time at or prior to the Closing, and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment termination shall be reasonably satisfactory without liability of any party to the Placement Agentany other party except as provided in Sections 5 and 8.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agent Agreement (Ampio Pharmaceuticals, Inc.)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company hereinPartnership Parties contained herein or in certificates of any officer of the PBFX Entity delivered pursuant to the provisions hereof, to the performance by each of the Company Partnership Parties of its covenants and other obligations hereunder, and to the following additional further conditions:
(a) On or prior to The Registration Statement has been and remains effective and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement 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 Memorandum or enjoining the offering or sale of the Shares will have Prospectus has been issued and no proceedings for that purpose or a similar purpose will any of those purposes have been initiated instituted or will be are pending or, to the knowledge of the Placement Agent or the CompanyPartnership’s knowledge, will be contemplated; and any the Partnership has complied with each request on (if any) from the part of the SEC or any securities authority of a state wherein the Shares are being offered Commission for additional information will have been complied with to the satisfaction of counsel for the Placement Agentrespect thereto.
(b) On The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., Eastern time, on the second full business day after the date of the Memorandum and the Closing Date this Agreement (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since the respective dates such earlier time as of which information is given in the Memorandum, there will not have been any material adverse change in the financial condition, results of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would may be required to be set forth in under the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumSecurities Act).
(c) The Placement Agent will have received evidence reasonably satisfactory Subsequent to the Placement Agent execution and delivery of this Agreement and prior to the Placement Agent's counsel Closing Date:
(i) there shall not have occurred any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the assignment possible change, in the rating accorded any of the securities of the PBFX Entities by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the PBFX Entities, taken as a whole, from that set forth in the Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Company of all rights Units on the terms and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is manner contemplated in the subject of such patent applicationProspectus.
(d) The Placement Agent will shall have received from on the Company's counselClosing Date a certificate, Atlasdated the Closing Date and signed by an executive officer of each Partnership Party, ▇▇▇▇▇▇▇▇on behalf of the applicable Partnership Party, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent effect set forth in Section 5(c) above and to the Placement Agent's counseleffect that the representations and warranties of the Partnership Parties contained in this Agreement are true and correct as of the Closing Date and that the Partnership Parties have complied in all material respects with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) On the Closing Date, the Company and the The Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following have received on the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on Date an expedited basis, for listing the Corporation Records Service published by Standard opinion and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each negative assurance letter of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Partnership Parties, dated the Closing Date, in form and ▇▇substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will LLP, counsel for the Placement Agent, dated the Closing Date, with respect to such matters as the Placement Agent may require.
(g) The Placement Agent shall have executed all documents necessary to assign received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Company all rights and interest he may have in and Placement Agent, from (i) Deloitte & Touche LLP, an independent registered public accounting firm with respect to United States Patent Application number 08/825,686 the Predecessor and the heat transfer system which is Partnership, and (ii) KPMG LLP, an independent registered public accounting firm with respect to CPI Operations LLC, in each case, containing statements and information of the subject type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and PBF LLC, and certain officers and directors of the Partnership and/or the General Partner relating to sales and certain other dispositions of Common Units or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) On the date hereof, the Placement Agent shall have received a certificate, dated the date hereof (with respect to certain financial information contained in the Prospectus) and, at the Closing Date, the Placement Agent shall have received a certificate, dated the Closing Date (with respect to certain financial information contained in the Prospectus), of the Chief Financial Officer of the Partnership as to the accuracy of such patent applicationcertain financial information contained in the Prospectus, which such assignment shall be as applicable, in form and substance reasonably satisfactory to the Placement Agent.
(j) The Company shall Units to be delivered on such Closing Date will have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby been approved for listing on the Company shall assume the obligations NYSE, subject to official notice of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agentissuance.
(k) Within 90 days from FINRA has confirmed that it has not raised any objection with respect to the Closing Date, the Company will obtain "key man" insurance in the amount fairness and reasonableness of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonablearrangements relating to the offering of the Units.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, to the following further condition that during the subscription Period, no proceedings shall be initiated or threatened by the Commission or any state securities commission or similar body against the Company and to the following additional conditions:
(a) On The Placement Agent shall not have disclosed in writing to the Company that the Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel to the Placement Agent, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein not misleading.
(b) Between the date hereof and each Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(c) Between the date hereof and each Closing Date, except as disclosed in or contemplated by the Memorandum, there shall be no material litigation instituted or threatened against the Company and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations or financial condition or income of the Company.
(d) Except as contemplated herein or as set forth in or contemplated by the Memorandum or supplement or amendment thereto, during the period subsequent to the date of the Memorandum and prior to each Closing Date, (i) the Company (A) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the Memorandum and (B) except in the ordinary course of its business, the Company shall not have incurred any liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise.
(e) The authorization of the Units, Memorandum and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Placement Agent, who shall have received on each Closing Date such favorable opinion of the Company's counsel and Uni-Pixel Displays' counsel with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Placement Agent may reasonably require and the Merger Parties shall have furnished such counsel such documents as they may have requested to enable them to pass upon the matters referred to herein.
(f) The Company shall have furnished to the Placement Agent a certificate of the President or Executive Vice President and the Treasurer of the Company, dated as of each Closing Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.;
(bii) On the date of the Memorandum and the Closing Date (i) The respective officers have each carefully examined the Memorandum and any amendments or and supplements thereto, and to the best of their knowledge the Memorandum and any amendments and supplements thereto will contain and all material statements which contained therein are required to be stated therein in accordance with the Act true and the Regulations and will conform in all material respects to the requirements of the Act and the Regulationscorrect, and neither the Memorandum nor any amendment or supplement thereto will contain includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and, in light since the effective date of the circumstances under Memorandum, there has occurred no event required to be set forth in an amended or supplemented Memorandum which they were made; has not been so set forth.
(iiiii) Except as set forth in or contemplated by the Memorandum since the respective dates as of which or periods for which information is given in the Memorandum, Memorandum and prior to the date of such certificate (A) there will has not have been any material substantially adverse change change, financial or otherwise, in the financial condition, results of operations affairs or affairs condition of the Company from that set forth and (B) the Company has not incurred any liabilities, direct or contemplated in the Memorandumcontingent, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Companyany transactions, other otherwise than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent furnished to the Placement Agent at each Closing Date, such other certificates, additional to those specifically mentioned herein, as the Placement Agent may have reasonably requested as to the accuracy and completeness of any statement in the Memorandum, or in any amendment or supplement thereto; of the representations and warranties of the Company herein; as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to its obligations hereunder, which are required to be performed or fulfilled on or prior to each Closing Date. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel to the Placement Agent.
(h) , whose approval shall not be unreasonably withheld. The Company Placement Agent reserves the right to waive any of the conditions herein set forth. If a condition specified in this Section shall not have entered into employment agreements reasonably satisfactory been fulfilled in any material respect when and as required to be fulfilled, this Agreement may be terminated by the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign by written notice to the Company all rights at any time at or prior to the Closing, and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment termination shall be reasonably satisfactory without liability of any party to the Placement Agentany other party except as provided in Section 6.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as ------------------------------------------- provided shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, the Prospectus, any Incorporated Document or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the reasonable judgment of the Placement Agent, impracticable or inadvisable to market the Plus Cash Notes or to enforce contracts for the exchange and/or sale of the Plus Cash Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or the Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, the Prospectus, and the registration, authorization, issue, and delivery of the Plus Cash Notes issuable in accordance with the New Money Offering, shall have been executed in a manner reasonably satisfactory to Placement Agent's Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP , counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of intellectual property counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto. Counsel rendering the foregoing opinions in (d) and (e) may rely as to questions of law not involving the laws of the United States of America or the State of Delaware, upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(f) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, you shall have received from KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information for the fiscal years prior 2000, 2001, and 2002 and the six months ended June 30, 2003 contained in the Prospectus.
(h) You shall have received by or on the effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (g) above.
(i) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (g) and (h) above.
(j) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at all times subsequent thereto up to the date of such certificate, the Memorandum Registration Statement and the Closing Date (i) the Memorandum Prospectus, and any amendments or supplements thereto will contain and the Incorporated Documents, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the condition (financial conditionor otherwise), results of operations earnings, operations, business or affairs business prospects of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the capital stock or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge capital stock of the Company, threatened against or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which would be required to be set forth in has been sustained or will have been sustained and which has a Material Adverse Effect or a Material Adverse Effect on the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best ability of the knowledge of Company to perform its obligations under the Company, threatened against New Money Offering or consummate the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumNew Money Offering.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(gk) The Company shall have appointed a transfer agent furnished to you such further certificates and documents as you shall reasonably satisfactory request (including certificates of officers of the Company) as to the Placement Agentaccuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(hl) The Company You shall have entered into employment agreements reasonably satisfactory to received lock-up letters, substantially in the Placement Agent with form set forth in Exhibit A hereto, from each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ the executive officers and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇directors of the Company set forth on Schedule A hereto.
(im) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company You shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the Company will obtain "key man" insurance in the amount fairness and reasonableness of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof arrangements in connection with the offering of the Securities. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are commercially reasonablereasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided herein shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On or prior to The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date, Date and no stop order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will effectiveness thereof shall have been issued and no proceedings for that either purpose or a similar purpose will shall have been initiated or will be pending or, to the knowledge of the Placement Agent Company or you, threatened by the CompanyCommission, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered Commission for additional information will (to be included in the Registration Statement, the Prospectus, any Incorporated Document or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Placement Agentyour counsel.
(b) On the date After execution and delivery of the Memorandum this Agreement and prior to the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein there shall not misleading, in light of the circumstances under which they were made; (ii) since have occurred from the respective dates as of which information is given in the MemorandumProspectus (exclusive of any amendment or supplement thereto) (i) any material adverse change in the condition, there will financial or otherwise, or in the earnings, business affairs or business prospects of the Company whether or not have been arising in the ordinary course of business, or (ii) any material adverse change in the financial conditionmarkets in the United States or in the international financial markets, results any outbreak of operations hostilities or affairs escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the judgment of the Company from that set forth Placement Agent, impracticable or contemplated in inadvisable to market the MemorandumPlus Cash Notes or to enforce contracts for the exchange and/or sale of the Plus Cash Notes, except changes which the Memorandum indicates might occur after the date thereof; or (iii) since any trading suspension or material limitation in trading instituted by the date Commission or Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or on Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the MemorandumCommission, there shall have been no the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material transaction, contract disruption in commercial banking or agreement entered into by the Company, other than securities settlement or clearance services in the ordinary course of businessUnited States, which would be required to be set forth in the Memorandum, other than as set forth therein; and or (iv) no action, suit the declaration of a banking moratorium by either Federal or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumNew York authorities.
(c) The Placement Agent will All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, the Prospectus, and the registration, authorization, issue, and delivery of the Plus Cash Notes issuable in accordance with the New Money Offering, shall have received evidence been completed in a manner reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationyour counsel.
(d) The Placement Agent will You shall have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form opinion of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇, LLP, counsel for the Company, dated the Closing Date addressed to you, substantially to the effect set forth in Exhibit B-1 hereto.
(e) You shall have received the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, patent counsel for the Company, dated the Closing Date addressed to you, substantially to the effect set forth in Exhibit B-2 hereto. Counsel rendering the foregoing opinions in (d) and (e) may rely as to questions of law not involving the laws of the United States of America and the State of Delaware, upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(f) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall be have furnished to such counsel such documents as they may have reasonably requested for the beneficiarypurpose of enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, you shall have received from KPMG LLP, a letter dated such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2001, 2002 and 2003 contained in the Prospectus.
(h) You shall have received by or on the effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (g) above.
(i) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you, which such insurance shall reaffirm the statements made in the letters referenced in (g) and (h) above.
(j) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying on behalf of the Company that, and you shall be purchased satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing 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 under the Securities Act;
(iii) when the Registration Statement became effective and at all times subsequent thereto up to the date of such certificate, the Registration Statement and the Prospectus, and any amendments or supplements thereto and the Incorporated Documents, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any 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; the Prospectus, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial or otherwise), earnings, operations, business or business prospects of the Company and its subsidiary considered as one enterprise, (b) any transaction that is material to the Company and its subsidiary considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiary considered as one enterprise, incurred by the Company or its subsidiary, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiary considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or its subsidiary which has been sustained or will have been sustained and which has a Material Adverse Effect or a Material Adverse Effect on the ability of the Company to perform its obligations under the New Money Offering or consummate the New Money Offering.
(k) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance of the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(l) You shall have received lock-up letters, dated the date of this Agreement, substantially in the form set forth in Exhibit A hereto, from each of the Placement Agent providing executive officers and directors of the Company set forth in Schedule A hereto.
(m) You shall have received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and costs thereof arrangements in connection with the offering of the Plus Cash Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are commercially reasonablereasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 1 contract
Sources: Placement Agreement (Viropharma Inc)
Conditions of Placement Agent’s Obligations. The Spartan’s obligations of the Placement Agent under this Agreement to act as a placement agent hereunder are subject (as of the date hereof and on the Closing Date) as of each Closing), to the accuracy of and compliance with the representations and warranties of the Company herein, and to the accuracy of the statements of the Company made pursuant to the provisions hereof and to the performance by each of the Company of its obligations covenants and agreements hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued From and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.
(b) On the date of the Memorandum and the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since after the respective dates as of which information is given in the Memorandum:
(i) there shall not have been any change in the capital stock of the Company or any material change in the long-term debt of the Company, except as set forth in or contemplated by the Memorandum;
(ii) there will shall not have been any material adverse change in the general affairs, management, financial conditionposition, results result of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations prospects of the Company, other than as set forth in or contemplated by the Memorandum.Memorandum or this Agreement;
(ciii) The Placement Agent will the Company shall not have received evidence reasonably satisfactory to sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, if in the judgment of the Placement Agent any such development referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable to consummate the sale and the Placement Agent's counsel delivery of the assignment Shares by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(hb) The Company Since the respective dates as of which information is given herein, there shall have entered into employment agreements reasonably satisfactory to been no litigation instituted against the Placement Agent with each Company and since such dates there shall be no proceeding instituted or threatened against the Company or any of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇its officers or directors, ▇▇▇▇▇▇ ▇▇▇▇before or by any federal, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ state or county court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇adversely affect the business, properties, financial condition, results of operations or prospects of the Company.
(ic) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to Each of the representations and warranties of the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment contained herein shall be reasonably satisfactory true and correct at the signing of this Agreement and at each Closing as if made at such Closing, and all covenants and agreements herein contained to be performed on the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby part of the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and conditions herein contained to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased fulfilled or complied with by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonableat or prior to each Closing shall have been duly performed, fulfilled or complied with.
Appears in 1 contract
Sources: Placement Agent Agreement (Lipella Pharmaceuticals Inc.)
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, the Prospectus, any Incorporated Document or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the reasonable judgment of the Placement Agent, impracticable or inadvisable to market the Plus Cash Notes or to enforce contracts for the exchange and/or sale of the Plus Cash Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or the Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, the Prospectus, and the registration, authorization, issue, and delivery of the Plus Cash Notes issuable in accordance with the New Money Offering, shall have been executed in a manner reasonably satisfactory to Placement Agent’s Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP , counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of intellectual property counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto. Counsel rendering the foregoing opinions in (d) and (e) may rely as to questions of law not involving the laws of the United States of America or the State of Delaware, upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(f) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, you shall have received from KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years prior 2000, 2001, and 2002 and the six months ended June 30, 2003 contained in the Prospectus.
(h) You shall have received by or on the effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (g) above.
(i) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (g) and (h) above.
(j) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at all times subsequent thereto up to the date of such certificate, the Memorandum Registration Statement and the Closing Date (i) the Memorandum Prospectus, and any amendments or supplements thereto will contain and the Incorporated Documents, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the condition (financial conditionor otherwise), results of operations earnings, operations, business or affairs business prospects of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the capital stock or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge capital stock of the Company, threatened against or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which would be required to be set forth in has been sustained or will have been sustained and which has a Material Adverse Effect or a Material Adverse Effect on the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best ability of the knowledge of Company to perform its obligations under the Company, threatened against New Money Offering or consummate the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumNew Money Offering.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(gk) The Company shall have appointed a transfer agent furnished to you such further certificates and documents as you shall reasonably satisfactory request (including certificates of officers of the Company) as to the Placement Agentaccuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(hl) The Company You shall have entered into employment agreements reasonably satisfactory to received lock-up letters, substantially in the Placement Agent with form set forth in Exhibit A hereto, from each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ the executive officers and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇directors of the Company set forth on Schedule A hereto.
(im) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company You shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the Company will obtain "key man" insurance in the amount fairness and reasonableness of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof arrangements in connection with the offering of the Securities. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are commercially reasonablereasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no No stop order suspending the use effectiveness of the Memorandum Registration Statement or enjoining the offering qualification or sale registration of the Shares will have been issued under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceedings for that purpose or a similar purpose will shall have been initiated or will be pending orthreatened by any securities or other governmental authority (including, to without limitation, the knowledge of the Placement Agent or the CompanyCommission), will be contemplated; and any request for additional information on the part of the SEC or staff of any securities or other governmental authority of a state wherein (including, without limitation, the Shares are being offered for additional information will Commission) shall have been complied with to the satisfaction of the staff of the Commission or such other authorities and after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been (i) any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, general affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries, taken as a whole, or (ii) any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in or contemplated by the Registration Statement or the Prospectus, the effect of which, in any such case described in clauses (i) and (ii) above, is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(c) The Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that (i) the Registration Statement, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the Placement Agent, is material, or omits to state any fact which, in the opinion of the Placement Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or (ii) the Prospectus, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the Placement Agent, is material, or omits to state any fact which, in the opinion of the Placement Agent, 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.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) The Placement Agent shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, corporate counsel for to the Company, such counsel’s written opinion, addressed to the Placement Agent and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
(bf) On The Placement Agent shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PC, regulatory counsel to the Company, such counsel’s written opinion, addressed to the Placement Agent and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, such opinion or opinions, dated the Closing Date and addressed to the Placement Agent, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(h) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A, on the date of the Memorandum Prospectus, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date .
(i) The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement Agent and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) the Memorandum representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of the Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement is effective and, to their knowledge, as of the Closing Date, no stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or are pending before or are contemplated by the Commission or any state or regulatory body;
(iii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto will contain all material statements which are required (and any documents filed under the Exchange Act and deemed to be stated therein in accordance with incorporated by reference into the Act and the Regulations and will conform in all material respects to the requirements of the Act and the RegulationsProspectus), and neither (A) the Memorandum nor Registration Statement, or any amendment or supplement thereto will thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made; , not misleading, and (iiB) since the respective dates no event has occurred as a result of which information it is given necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the MemorandumProspectus, there will not have has been any material adverse no change in the financial conditionposition or results of operation of the Company and its subsidiaries that would have a Material Adverse Effect, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations operations, business or affairs prospects of the Company from that set forth or contemplated in the Memorandumand its subsidiaries taken as a whole, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement AgentProspectus.
(j) The Company Shares shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇been approved for quotation on the Nasdaq National Market and listed and admitted and authorized for trading on the Nasdaq National Market, subject only to official notice of issuance. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject Satisfactory evidence of such patent application, which such agreements actions shall be reasonably satisfactory have been provided to the Placement Agent.
(k) Within 90 days from No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares.
(l) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Placement Agency Agreement and any other documents relating thereto.
(m) The Company shall have entered into Subscription Agreements with each of the Investors.
(n) The Placement Agent shall have received copies of the executed Lock-up Agreements executed by each person listed on Schedule I hereto, and such Lock-up Agreements shall be in full force and effect on the Closing Date.
(o) Prior to the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from have furnished to the Placement Agent providing such further information, certificates or documents as the terms Placement Agents shall have reasonably requested. All opinions, letters, evidence and costs thereof certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are commercially reasonablein form and substance reasonably satisfactory to counsel for the Placement Agent. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The Spartan’s obligations under this Agreement to act as a placement agent as a member of the Placement Agent hereunder FINRA are subject (as of the date hereof and on the Closing Date) as of each Closing), to the accuracy of and compliance with the representations and warranties of the Company herein, and to the accuracy of the statements of the Company made pursuant to the provisions hereof and to the performance by the Company of its obligations covenants and agreements hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.
(b) On the date of the Memorandum and the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since Since the respective dates as of which information is given in the Memorandum:
(i) there shall not have been any change in the capital stock of the Company or any material change in the long-term debt of the Company, except as set forth in or contemplated by the Memorandum;
(ii) there will shall not have been any material adverse change in the general affairs, management, financial condition, results position or result of operations or affairs of the Company from that Company, other than as set forth in or contemplated in the Memorandum, except changes which by the Memorandum indicates might occur after the date thereof; or this Agreement;
(iii) since the date Company shall not have sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, if in the judgment of the MemorandumPlacement Agent any such development referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Placement Agent.
(b) Since the respective dates as of which information is given herein, there shall have been no material transaction, contract litigation instituted against the Company and since such dates there shall be no proceeding instituted or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandumor any of its officers or directors, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federalfederal, state or county co commission, regulatory body, administrative agency or other tribunal governmental body, domestic or agency wherein foreign, in which litigation or proceeding an unfavorable decisionruling, ruling decision or finding would materially and adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will Each of the representations and warranties of the Company contained herein shall be true and correct at the signing of this Agreement and at each Closing as if made at such Closing, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to each Closing shall have received evidence reasonably been duly performed, fulfilled or complied with.
(d) Each of M▇▇▇▇▇ “T▇▇▇” A▇▇▇ III and MCKEA Holdings, LLC shall have entered into a voting agreement in a form satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer they agree to provide financial consulting services to vote all shares of capital stock of the Company for owned by them or exercise written consents to remove a period of 24 months following the Closing Datedirector as contemplated by Section 6(a)(xii).
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent Agents hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(ai) On or prior to the Closing Date, no No stop order suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will Registration Statement shall have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will shall be pending oror threatened by any securities or other governmental authority (including, to without limitation, the knowledge Commission), (ii) no order suspending the qualification or registration of the Placement Agent Shares under the securities or the Companyblue sky laws of any jurisdiction shall be in effect, will be contemplated; and (iii) any request for additional information on the part of the SEC or staff of any securities or other governmental authority of a state wherein (including, without limitation, the Shares are being offered for additional information will Commission) shall have been complied with to the satisfaction of counsel for the staff of the Commission or such other authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement AgentAgents and the Placement Agents did not reasonably object thereto in good faith.
(b) On Since the date respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement or the Prospectus, and (ii) the Company shall not have sustained any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in or contemplated by the Registration Statement or the Prospectus, the effect of which, in any such case described in clauses (i) and (ii) above, is, in the judgment of the Memorandum Lead Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(c) The Placement Agents shall not have discovered and disclosed to the Company on or prior to the Closing Date that (i) the Memorandum Registration Statement, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the Placement Agents, is material, or omits to state any fact which, in the opinion of the Placement Agents, is material and any amendments or supplements thereto will contain all material statements which are is required to be stated therein in accordance with or is necessary to make the Act and statements therein not misleading, or (ii) the Regulations and will conform in all material respects to the requirements of the Act and the RegulationsProspectus, and neither the Memorandum nor or any amendment or supplement thereto will contains an untrue statement of a fact which, in the opinion of the Placement Agents, is material, or omits to state any fact which, in the opinion of the Placement Agents, 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.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) The Placement Agents and the Investors shall have received from ▇▇▇▇▇▇ Godward LLP, corporate counsel to the Company, such counsel’s written opinions, addressed to the Placement Agents and the Investors and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents.
(f) The Placement Agents and the Investors shall have received from Sterne, Kessler, ▇▇▇▇▇▇▇▇▇ & Fox, patent counsel to the Company, such counsel’s written opinion, addressed to the Placement Agents and the Investors and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents.
(g) The Placement Agents shall have received from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, such opinion or opinions, dated the Closing Date and addressed to the Placement Agents, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(h) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A, on the date of the Prospectus, the Auditors shall have furnished to the Placement Agents a letter, dated the date of its delivery (the “Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement Agents, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Auditors shall have furnished to the Placement Agents a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date .
(i) The Placement Agents shall have received on the Closing Date a certificate, addressed to the Placement Agents and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) each of the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of the Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) to their knowledge, (A) 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 be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), and (B) no order suspending the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority.
(iii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and (A) as of its effective date, the Registration Statement, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as of the Closing Date, the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made; , not misleading, and (iiB) since the respective dates no event has occurred as a result of which information it is given necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the MemorandumProspectus, there will not have has been any material adverse no change in the financial condition, position or results of operations or affairs operation of the Company from that set forth or contemplated in the Memorandumwould have a Material Adverse Effect, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumProspectus.
(cj) The Placement Agent will Shares shall have received been approved for quotation on the Nasdaq National Market and listed and admitted and authorized for trading on the Nasdaq National Market, subject only to official notice of issuance. Satisfactory evidence reasonably satisfactory of such actions shall have been provided to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationAgents.
(dk) The Placement Agent will No action shall have received from the Company's counselbeen taken and no statute, Atlasrule, ▇▇▇▇▇▇▇▇regulation or order shall have been enacted, Trop & Borksonadopted or issued by any governmental agency or body which would, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares.
(l) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.
(m) The NASD shall have raised no objection to the fairness and reasonableness of the placement agency terms and arrangements relating to the issuance and sale of the Shares.
(n) The Placement Agent Agents shall enter into a financial consulting agreement, in have received copies of the form of executed Lock-Up Agreements executed by each person listed on Exhibit B attached C hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following and such Lock-Up Agreements shall be in full force and effect on the Closing Date.
(fo) Within three business days following Prior to the Closing Date, the Company shall applyhave furnished to the Placement Agents such further information, on an expedited basis, for listing certificates or documents as the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company Placement Agents shall have appointed a transfer agent reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
(h) Agents. The Company shall have entered into employment agreements reasonably satisfactory to will furnish the Placement Agent Agents with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject such conformed copies of such patent applicationopinions, which such assignment certificates, letters and other documents as they shall be reasonably satisfactory to the Placement Agentrequest.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided herein shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the judgment of the Placement Agent, impracticable or inadvisable to market the Units or to enforce contracts for the exchange and/or sale of the Units, or (iii) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus the Prospectus, and the registration, authorization, issue, and delivery of the Units issuable in accordance with the Offering, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received on the Closing Date an opinion of Brown, Winick, Graves, Gross, B▇▇▇▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇, P.L.C. in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(e) You shall have received from the Company’s accountants, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Prospectus.
(f) You shall have received by or on the Closing Date, a bring-down comfort letter, dated as of the Closing Date (or one business day prior thereto), from your accountants addressed to you, which shall reaffirm the statements made in the letter referenced in (i) above.
(g) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Memorandum and Registration Statement, the Closing Date (i) the Memorandum Prospectus, and any amendments or supplements thereto will contain thereto, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations or affairs of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the capital or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge capital of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following any loss or damage (whether or not insured) to the Closing Date, property of the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard or any of its subsidiaries which has been sustained or will have been sustained and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for which has a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement AgentMaterial Adverse Effect.
(h) The Company shall have entered into employment agreements furnished to you such further certificates and documents as you shall reasonably satisfactory request (including certificates of officers of the Company) as to the Placement Agent with each accuracy of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇the representations and warranties of the Company herein, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as to the performance by the Company of its obligations hereunder and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇as to the other conditions concurrent and precedent to your obligations hereunder.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will The FINRA shall have executed all documents necessary to assign confirmed that it has not raised any objection with respect to the Company all rights fairness and interest he may have reasonableness of the terms and arrangements in connection with the offering of the Units. All such opinions, certificates, letters and to United States Patent Application number 08/825,686 and documents will be in compliance with the heat transfer system which is the subject of such patent application, which such assignment shall be provisions hereof only if they are reasonably satisfactory to the Placement Agent.
(j) your counsel. The Company shall have entered into an agreement will furnish you with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations such number of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject conformed copies of such patent applicationopinions, which such agreements certificates, letters and documents as you shall be reasonably satisfactory to the Placement Agentrequest.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agent Agreement (Amaizing Energy Holding Company, LLC)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent Agents hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(ai) On or prior to the Closing Date, no No stop order suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will Registration Statement shall have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will shall be pending oror threatened by any securities or other governmental authority (including, to without limitation, the knowledge Commission), (ii) no order suspending the qualification or registration of the Placement Agent Shares under the securities or the Companyblue sky laws of any jurisdiction shall be in effect, will be contemplated; and (iii) any request for additional information on the part of the SEC or staff of any securities or other governmental authority of a state wherein (including, without limitation, the Shares are being offered for additional information will Commission) shall have been complied with to the satisfaction of counsel for the staff of the Commission or such other authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement AgentAgents and the Placement Agents did not reasonably object thereto in good faith.
(b) On Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Memorandum Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), and (ii) the Company shall not have sustained any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in the Registration Statement (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), the effect of which, in any such case described in clauses (i) and (ii) above, is, in the judgment of the Joint Lead Placement Agents, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(c) The Placement Agents shall not have discovered and disclosed to the Company on or prior to the Closing Date that (i) the Memorandum Registration Statement, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the Placement Agents, is material, or omits to state any fact which, in the opinion of the Placement Agents, is material and any amendments or supplements thereto will contain all material statements which are is required to be stated therein in accordance with or is necessary to make the Act and statements therein not misleading, or (ii) the Regulations and will conform in all material respects to the requirements of the Act and the RegulationsProspectus, and neither the Memorandum nor or any amendment or supplement thereto will contains an untrue statement of a fact which, in the opinion of the Placement Agents, is material, or omits to state any fact which, in the opinion of the Placement Agents, 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.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) The Placement Agents shall have received from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, corporate counsel to the Company, such counsel’s written opinion, addressed to the Placement Agents and the Investors and dated the Closing Date, in form and substance as is set forth on Exhibit C attached hereto. Such counsel shall also have furnished to the Placement Agents a written statement, addressed to the Placement Agents and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents as set forth in Exhibit D attached hereto.
(f) The Placement Agents shall have received from L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, such opinion or opinions, dated the Closing Date and addressed to the Placement Agents, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(g) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A, on the date of the Prospectus, the Auditors shall have furnished to the Placement Agents a letter, dated the date of its delivery (the “Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement Agents, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Auditors shall have furnished to the Placement Agents a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date .
(h) The Placement Agents shall have received on the Closing Date a certificate, addressed to the Placement Agents and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) each of the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of the Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(A) 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 be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (B) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), and (C) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities
(iii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and (A) as of its effective date, the Registration Statement, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as of the Closing Date, the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made; , not misleading, and (iiB) since the respective dates no event has occurred as a result of which information it is given necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the MemorandumProspectus, there will not have has been any no material adverse change in the financial condition, position or results of operations or affairs operation of the Company from that set forth or contemplated in the Memorandumand its Subsidiaries, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumProspectus.
(ci) The Placement Agent will Shares shall have received been approved for quotation on the Nasdaq National Market and listed and admitted and authorized for trading on the Nasdaq National Market, subject only to official notice of issuance. Satisfactory evidence reasonably satisfactory of such actions shall have been provided to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationAgents.
(dj) The Placement Agent will No action shall have received from the Company's counselbeen taken and no statute, Atlasrule, ▇▇▇▇▇▇▇▇regulation or order shall have been enacted, Trop & Borksonadopted or issued by any governmental agency or body which would, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares.
(k) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.
(l) The NASD shall have raised no objection to the fairness and reasonableness of the placement agency terms and arrangements.
(m) The Placement Agent Agents shall enter into a financial consulting agreement, in have received copies of the form of executed Lock-Up Agreements executed by each person listed on Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following and such Lock-Up Agreements shall be in full force and effect on the Closing Date.
(fn) Within three business days following Prior to the Closing Date, the Company shall applyhave furnished to the Placement Agents such further information, on an expedited basis, for listing certificates or documents as the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company Placement Agents shall have appointed a transfer agent reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
(h) Agents. The Company shall have entered into employment agreements reasonably satisfactory to will furnish the Placement Agent Agents with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject such conformed copies of such patent applicationopinions, which such assignment certificates, letters and other documents as they shall be reasonably satisfactory to the Placement Agentrequest.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agency Agreement (Sangamo Biosciences Inc)
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided herein shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On or prior to The Registration Statement shall have been filed and no stop order refusing the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no proceedings for that purpose or a similar purpose will event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been initiated or will be pending orissued and, to the knowledge of the Placement Agent Company or you, no proceedings for either purpose shall have been initiated or threatened by the CompanyCommission, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered Commission for additional information will (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Placement Agentyour counsel.
(b) On the date After execution and delivery of the Memorandum this Agreement and prior to the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein there shall not misleading, in light of the circumstances under which they were made; (ii) since have occurred from the respective dates as of which information is given in the Memorandum, there will not have been Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations or affairs of the Company from that set forth whether or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than not arising in the ordinary course of business, which would be required to be set forth or (ii) any material adverse change in the Memorandumfinancial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other than calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as set forth therein; and to make it, in the judgment of the Placement Agents, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) no action, suit the declaration of a banking moratorium by either Federal or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumNew York authorities.
(c) The Placement Agent will All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the New Money Offering, shall have received evidence been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the Placement Agent and matters referred to in this Section.
(d) You shall have received the Placement Agent's opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the assignment by opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the Company form of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationExhibit B-3 hereto.
(dg) The Placement Agent will You shall have received from the Company's counsel, Atlas, opinion of ▇▇▇▇▇▇▇▇▇, Trop Held & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Borun, special counsel to the Company with respect to patent and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) ▇▇▇You shall have received the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary , Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to assign to you, substantially in the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject form of such patent application, which such assignment shall be reasonably satisfactory to the Placement AgentExhibit B-6 hereto.
(j) The Company You shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇& ▇▇▇▇▇▇▇ pursuant LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that certain Agreement dated July 18they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, 1997 between ▇▇▇▇▇▇▇ ▇representation or certificate. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ Copies of any opinion, representation or certificate so relied upon shall waived any and all rights and interest he may have in be delivered to you, as Placement Agents, and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agentyour counsel.
(k) Within 90 days You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto) or as of the Applicable Time (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company will obtain "key man" insurance in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing 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 under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any 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; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iv) subsequent to the respective dates as of which information is given in the amount Registration Statement and Prospectus and up to the date of $1,000,000 on such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the life financial condition, business, prospects, property, operations or results of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, operations of which the Company shall be and its subsidiaries considered as one enterprise, (b) any transaction that is material to the beneficiaryCompany and its subsidiaries considered as one enterprise, which such insurance shall be purchased except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(p) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the Placement Agent providing executive officers and directors of the Company set forth on Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and costs thereof arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are commercially reasonablereasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 1 contract
Sources: Placement Agreement (Xoma LTD /De/)
Conditions of Placement Agent’s Obligations. The obligations obligation of the Placement Agent to purchase the Shares hereunder are is subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) On If, at the time this Agreement is executed and delivered, it is necessary for a post effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, such post effective amendment shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, or prior at such later date and time as shall be consented to in writing by the Placement Agent, and all filings, if any, required by Rule 424 under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any Placement Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package, the Prospectus or otherwise) shall have been complied with to the Placement Agent's satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company and its subsidiaries taken as a whole not contemplated by the Disclosure Package or the Prospectus, which in the Placement Agent's reasonable opinion would materially, adversely affect the market for the Shares, or any event or development relating to or involving the Company or any of its subsidiaries or any officer or director of the Company which makes any material statement made in the Disclosure Package and the Prospectus untrue or which, in the reasonable opinion of the Company and its counsel or the Placement Agent and their counsel, requires the making of any addition to or change in the Disclosure Package or the Prospectus in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package and the Prospectus to reflect such event or development would, in the Placement Agent's reasonable opinion materially adversely affect the market for the Shares.
(c) The Placement Agent shall have received on the Closing Date, the opinions and the disclosure letter from Hunton & Williams LLP, counsel for the Company, the Trust and the Partners▇▇▇, ▇▇▇ed the Closing Date and addressed to the Placement Agent substantially to the effect as set forth in Schedule C-1, C-2 and C-3 hereto.
(d) The Placement Agent shall have received on the Closing Date an opinion of Bass, Berry & Sims PLC, counsel for the Placement Agent, dated the Clos▇▇▇ ▇ate ▇▇▇ addressed to the Placement Agent with respect to such matters as the Placement Agent may reasonably require; and the Company and the Partnership shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section and in order to evidence the accuracy, completeness and satisfaction of the representations, warranties and conditions herein contained.
(e) The Placement Agent shall have received letters addressed to the Placement Agent and dated the date hereof and the Closing Date from PricewaterhouseCoopers LLP, the independent registered public accounting firm, substantially in the forms heretofore approved by the Placement Agent.
(f) The Company shall have furnished to the Placement Agent a certificate, signed by the Chief Executive Officer of the Company, dated the date hereof, to the effect that such officer has reviewed the financial and related information in the Disclosure Package and the Prospectus and that the 2005 year end summary financial information included in the Disclosure Package and the Prospectus is, to his knowledge, accurately stated in all material respects.
(g) The Company and the Partnership shall have furnished to the Placement Agent a certificate, signed by the Chief Executive Officer and the Chief Financial Officer of the Company (and appropriate officer of the Partnership), dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, and any supplements thereto and this Agreement and that:
(i) since the Effective Date, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement, the Disclosure Package or the Prospectus which has not been so set forth; there has been no Issuer Free Writing Prospectus required to be filed under Rule 433(d) of the Act that has not been so filed; and there has been no document required to be filed under the Exchange Act that upon such filing would be deemed to be incorporated by reference into the Disclosure Package or the Prospectus that has not been so filed;
(ii) No stop order suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will Registration Statement shall have been issued and no proceedings for that purpose or a similar purpose will have has been initiated or will be pending taken or, to the knowledge of the Placement Agent Company, threatened by the Commission at or prior to the Closing Date; and
(iii) all representations and warranties made herein by the Company, will the Trust, and the Partnership are true and correct at such Closing Date, with the same effect as if made on and as of such Closing Date, and all agreements herein to be contemplated; and any request performed or complied with by the Company on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will prior to such Closing Date have been duly performed and complied with to by the satisfaction of counsel for the Placement Agent.Company;
(biv) On neither the Company nor any of its subsidiaries has sustained since the date of the Memorandum latest audited financial statements included or incorporated by reference in each of the Disclosure Package and the Closing Date 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;
(iv) except as disclosed in each of the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act Disclosure Package and the Regulations and will conform in all material respects Prospectus, subsequent to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since the respective dates as of which information is given in the MemorandumRegistration Statement, there will not have been any material adverse change in the financial condition, results of operations or affairs each of the Disclosure Package and the Prospectus, neither the Company from that set forth nor any of its subsidiaries has incurred any liabilities or contemplated in the Memorandumobligations, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract direct or agreement entered into by the Companycontingent, other than in the ordinary course of business, or entered into any transactions not in the ordinary course of business, which would be in either case are material to the Company and its subsidiaries, taken as a whole; and there has not been any change in the capital stock or material increase in the short-term debt or long term debt of the Company and its subsidiaries taken as a whole, or any material adverse change in the condition (financial or otherwise), results of operations or cash flow of the Company and its subsidiaries taken as a whole; and there has been no dividend or distribution of any kind, paid or made by the Company on any class of its capital stock.
(h) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit performed or proceeding complied with by it hereunder at law or in equity will be pending or, prior to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumClosing Date.
(ci) The Shares shall have been listed or approved for listing upon notice of issuance on the NYSE.
(j) The Company shall have furnished or caused to be furnished to the Placement Agent such further certificates and documents as the Placement Agent shall have reasonably requested. All such opinions, certificates, letters and other documents will have received evidence reasonably be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Placement Agent and the Placement Agent's counsel in the Placement Agent's reasonable discretion. Any certificate or document signed by any officer of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to Company, the Company Trust or the general partner of all rights the Partnership and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory delivered to the Placement Agent and or to counsel for the Placement Agent's counsel.
(e) On , shall be deemed a representation and warranty by the Closing DateCompany, the Company and Trust or the Placement Agent shall enter into a financial consulting agreementPartnership, in the form of Exhibit B attached heretoas applicable, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign as to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agentstatements made therein.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, to the following further condition that during the subscription Period, no proceedings shall be initiated or threatened by the Commission or any state securities commission or similar body against the Company and to the following additional conditions:
(a) On The Placement Agent shall not have disclosed in writing to the Company that the Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel to the Placement Agent, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein not misleading.
(b) Between the date hereof and each Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(c) Between the date hereof and each Closing Date, except as disclosed in or contemplated by the Memorandum, there shall be no material litigation instituted or threatened against the Company and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations or financial condition or income of the Company.
(d) Except as contemplated herein or as set forth in or contemplated by the Memorandum or supplement or amendment thereto, during the period subsequent to the date of the Memorandum and prior to each Closing Date, (i) the Company (A) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the Memorandum and (B) except in the ordinary course of its business, the Company shall not have incurred any liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise.
(e) The authorization of the Units, Memorandum and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Placement Agent, who shall have received from the Company on each Closing Date such favorable opinion of its counsel with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Placement Agent may reasonably require in the form annexed hereto as Exhibit A, and the Company shall have furnished such counsel such documents as they may have requested to enable them to pass upon the matters referred to herein.
(f) The Company shall have furnished to the Placement Agent a certificate of the President or Executive Vice President and the Treasurer of the Company, dated as of each Closing Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.;
(bii) On the date of the Memorandum and the Closing Date (i) The respective officers have each carefully examined the Memorandum and any amendments or and supplements thereto, and to the best of their knowledge the Memorandum and any amendments and supplements thereto will contain and all material statements which contained therein are required to be stated therein in accordance with the Act true and the Regulations and will conform in all material respects to the requirements of the Act and the Regulationscorrect, and neither the Memorandum nor any amendment or supplement thereto will contain includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and, in light since the effective date of the circumstances under Memorandum, there has occurred no event required to be set forth in an amended or supplemented Memorandum which they were made; has not been so set forth.
(iiiii) Except as set forth in or contemplated by the Memorandum since the respective dates as of which or periods for which information is given in the Memorandum, Memorandum and prior to the date of such certificate (A) there will has not have been any material substantially adverse change change, financial or otherwise, in the financial condition, results of operations affairs or affairs condition of the Company from that set forth and (B) the Company has not incurred any liabilities, direct or contemplated in the Memorandumcontingent, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Companyany transactions, other otherwise than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory furnished to the Placement Agent with at each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇Closing Date, ▇▇▇▇▇▇ ▇▇▇▇such other certificates, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will additional to those specifically mentioned herein, as the Placement Agent may have executed all documents necessary to assign reasonably requested as to the accuracy and completeness of any statement in the Memorandum, or in any amendment or supplement thereto; of the representations and warranties of the Company all rights herein; as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and interest he may have in and precedent to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationits obligations hereunder, which such assignment are required to be performed or fulfilled on or prior to each Closing Date. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be reasonably deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel to the Placement Agent.
(j) , whose approval shall not be unreasonably withheld. The Company Placement Agent reserves the right to waive any of the conditions herein set forth. If a condition specified in this Section shall not have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ been fulfilled in any material respect when and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant as required to that certain be fulfilled, this Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased terminated by the Company from the Placement Agent providing by written notice to the terms Company at any time at or prior to the Closing, and costs thereof are commercially reasonablesuch termination shall be without liability of any party to any other party except as provided in Section 5.
Appears in 1 contract
Sources: Placement Agent Agreement (Document Security Systems Inc)
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as ------------------------------------------- provided shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, the Prospectus, any Incorporated Document or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the reasonable judgment of the Placement Agent, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or the Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, the Prospectus, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Cash Offer, shall have been executed in a manner reasonably satisfactory to Placement Agent's Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP , counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of intellectual property counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto. Counsel rendering the foregoing opinions in (d) and (e) may rely as to questions of law not involving the laws of the United States of America or the State of Delaware, upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(f) You shall have received on the Closing Date an opinion of Shearman & Sterling, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, you shall have received from KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information for the fiscal years prior 2000, 2001, and 2002 and the three months ended March 31, 2003 contained in the Prospectus.
(h) You shall have received by or on the effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (g) above.
(i) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (g) and (h) above.
(j) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at all times subsequent thereto up to the date of such certificate, the Memorandum Registration Statement and the Closing Date (i) the Memorandum Prospectus, and any amendments or supplements thereto will contain and the Incorporated Documents, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the condition (financial conditionor otherwise), results of operations earnings, operations, business or affairs business prospects of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the capital stock or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge capital stock of the Company, threatened against or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which would be required to be set forth in has been sustained or will have been sustained and which has a Material Adverse Effect or a Material Adverse Effect on the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best ability of the knowledge of Company to perform its obligations under the Company, threatened against Cash Offer or consummate the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumCash Offer.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(gk) The Company shall have appointed a transfer agent furnished to you such further certificates and documents as you shall reasonably satisfactory request (including certificates of officers of the Company) as to the Placement Agentaccuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(hl) The Company You shall have entered into employment agreements reasonably satisfactory to received lock-up letters, substantially in the Placement Agent with form set forth in Exhibit A hereto, from each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ the executive officers and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇directors of the Company set forth on Schedule A hereto.
(im) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company You shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the Company will obtain "key man" insurance in the amount fairness and reasonableness of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof arrangements in connection with the offering of the Securities. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are commercially reasonablereasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The ▇▇▇▇▇▇▇▇▇▇'▇ obligations of the as Placement Agent hereunder are subject (as of the date hereof and on as of the Closing Date) Time), to the accuracy of and compliance with the representations and warranties of VMS and Pubco and to the Company herein, accuracy of the statements of VMS and Pubco made pursuant to the provisions hereof and to the performance by the Company each of VMS and Pubco of its obligations covenants and agreements hereunder, and to the following additional conditions:
(a) On or prior to Since the Closing Date, no order suspending respective dates as of which information is given in the use of the Memorandum or enjoining the offering or sale of the Shares will Memorandum:
(i) there shall not have been issued and no proceedings for that purpose any change in the capital stock of VMS or a similar purpose will any material change in the long-term debt of VMS or Pubco, except as set forth in or contemplated by the Memorandum;
(ii) there shall not have been initiated any material adverse change in the general affairs, management, financial position or will be pending orresult of operations of VMS or Pubco, to other than as set forth in or contemplated by the knowledge Memorandum;
(iii) each of VMS and Pubco shall not have sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, if in the judgment of the Placement Agent any such development referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable to consummate the Company, will be contemplated; sale and any request on the part delivery of the SEC or any securities authority of a state wherein Preferred Stock and the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for Warrants by the Placement Agent.
(b) On Since the respective dates as of which information is given herein, there shall have been no litigation instituted against VMS or Pubco and since such dates there shall be no proceeding instituted or threatened against VMS or Pubco or any of their respective officers or directors, before or by any federal, state or county court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, financial condition or results of operations of VMS or Pubco.
(c) Each of the representations and warranties of each of VMS and Pubco contained herein shall be true and correct at the signing of this Agreement and at the Closing Time as if made at the Closing Time, and all covenants and agreements herein contained to be performed on the part of VMS and/or Pubco and all conditions herein contained to be fulfilled or complied with by VMS and/or Pubco at or prior to the Closing Time shall have been duly performed, fulfilled or complied with.
(d) At the Closing Time, counsel for VMS shall furnish to Placement Agent an opinion of legal counsel in form and substance satisfactory to Placement Agent, dated as of the date of delivery, to the effect that:
(i) VMS and each of its subsidiaries: (A) is existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of organization; (B) is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the nature of the activities conducted by it or the character of the assets owned or leased by it requires such qualifications except where failure to be so qualified would not have a material adverse effect on VMS; and (C) has all requisite corporate power and authority to own or lease its properties and conduct its business as described herein.
(ii) To the knowledge of such counsel, no authorization, approval, consent or license of any governmental or regulatory body, agency or instrumentality is required in connection with the authorization, issuance, transfer, sale or delivery of the Preferred Stock and Warrants issued pursuant to the Memorandum and the Placement Agent Warrants, except as may be required pursuant to the federal securities laws and state Blue Sky laws.
(iii) The outstanding shares of VMS's capital stock have been duly authorized and validly issued, are fully paid and non-assessable, and have not to its knowledge been issued in violation of any pre-emptive rights.
(iv) VMS has full corporate power and authority to enter into this Agreement and the Merger Agreement; this Agreement and the Merger Agreement have been duly authorized, executed and delivered by or on behalf of VMS and each constitutes a legal, valid and binding obligation of VMS (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally and by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by applicable securities laws and the public policy underlying such laws).
(v) The execution and delivery of this Agreement by VMS, the consummation by VMS of the transactions herein contemplated and the compliance with the terms of this Agreement do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or bylaws of VMS, or to such counsel's knowledge, any indenture, mortgage or other agreement or instrument known to such counsel to which VMS is a party or by which VMS or any of its properties is bound, or any existing law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over VMS or any of its respective properties.
(vi) The execution and delivery of the Merger Agreement by VMS, the consummation by VMS of the transactions therein contemplated and the compliance with the terms of the Merger Agreement do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or bylaws of VMS.
(vii) To such counsel's knowledge, there are no suits or claims threatened or pending against VMS in any court or before or by any governmental body which would materially affect the business of VMS or its financial condition except as set forth herein or contemplated by the Memorandum.
(e) At the Closing Date Time, the counsel for Pubco shall furnish to Placement Agent an opinion in form and substance satisfactory to Placement Agent, dated as of the date of delivery, to the effect that:
(i) Pubco and Acquisition Sub are existing as corporations in good standing under the laws of their respective jurisdiction of organization.
(ii) The Preferred Stock and Warrants, including the shares of Common Stock underlying the Warrants and underlying the Preferred Stock to be sold in the Offering, when issued, assuming the payment of the applicable purchase or exercise price therefore will be validly issued and outstanding, fully paid and non-assessable and are owned free and clear of any liens, encumbrances, security interests, claims or other restrictions, other than as set forth or referred to in the Memorandum.
(iii) The Common Stock underlying the Warrants sold in the Offering and underlying the Preferred Stock sold in the Offering, and underlying the Placement Agent Shares and the Placement Agent Warrants will be duly authorized.
(iv) To the current actual knowledge of such counsel, no authorization, approval, consent or license of any governmental or regulatory body, agency or instrumentality is required in connection with the authorization, issuance, transfer, sale or delivery of the Preferred Stock and Warrants issued pursuant to the Memorandum, except as may be required pursuant to the federal securities laws and state Blue Sky laws.
(v) The execution and delivery of this Agreement by Pubco, the consummation by of the transactions herein contemplated and the compliance with the terms of this Agreement do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or bylaws of, or to the best of such counsel's knowledge, any indenture, mortgage or other agreement or instrument known to such counsel to which is a party or by which or any of its properties is bound, or to such counsel's knowledge any existing law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over or any of its respective properties.
(vi) The execution and delivery of the Merger Agreement by Pubco, the consummation by Pubco of the transactions herein contemplated and the compliance with the terms of the Merger Agreement do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or bylaws of Pubco.
(vii) To such counsel's knowledge, there are no suits or claims threatened or pending against Pubco in any court or before or by any governmental body which would materially affect the business of Pubco or its financial condition, except as disclosed in the Memorandum. Pubco is not subject to any judgments which have not been satisfied.
(viii) To such counsel's knowledge, except as disclosed in the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance the annual and periodic reports filed with the Act SEC on Form 10-KSB and Form 10-QSB, respectively, Pubco has no material obligations and is not subject to any indenture, mortgage or other agreement or instrument to which Pubco is a party or by which Pubco or any of its properties is bound.
(ix) To such counsel's knowledge, Pubco's annual and periodic reports filed with the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will SEC do not contain any untrue statement of a material fact or omitted or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since the respective dates as of which information is given in the Memorandum, there will not have been any material adverse change in the financial condition, results of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days Placement Agent shall have received lock-up agreements from each of the shareholders of VMS as of the time of the initial closing of the Offering, except with respect to 100,000 shares of Common Stock to be held by those shareholders specifically identified on Schedule 8(f) attached hereto, which lock-up agreements shall contain the following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published provisions:
(i) No shares of Common Stock of Pubco may be sold by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current such shareholder for a period of five years eighteen (18) months after the final closing of the Offering;
(ii) Commencing on the later of (a) eighteen (18) months following the Closing final closing date of the Offering and (b) ninety (90) days after the effective date of the resale registration statement required to be filed in connection with the Offering (the "Effective Date."), and at three-month intervals thereafter, each shareholder shall be permitted to sell 12.5% of such shareholder's holdings, subject to shares of Pubco's Common Stock having a minimum 30-day average trading price of $5.00 per share or greater;
(giii) Beginning at the later of (a) eighteen (18) months following the final closing date of the Offering and (b) ninety (90) days after the Effective Date, and at three-month intervals thereafter, should the 30-day average trading price of Pubco's shares of Common Stock be below $5.00 per share, if such shareholder is not an officer or director of Pubco (and was not at the time of the Reverse Merger) an affiliate or related party of an officer or director (an "Insider"), then such shareholder shall be permitted to sell a maximum of 25,000 shares per three-month period;
(iv) At twenty-four (24) months after the final closing of the Offering and at three-month intervals thereafter, such shareholder will be permitted to sell up to 12.5% of their holdings per three-month period irrespective of price;
(v) The Company Lock-Up Agreement will apply to shares of Common Stock, underlying stock options and warrants (but shall have appointed a transfer agent reasonably satisfactory to not prohibit the Placement Agent.exercise thereof); and
(hvi) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ All lock-up provisions will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 removed on the life three-year anniversary date of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the final closing of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonableOffering.
Appears in 1 contract
Sources: Placement Agent Agreement (Visual Management Systems Inc)
Conditions of Placement Agent’s Obligations. The respective obligations of the Placement Agent hereunder and the closing of the sale of the Shares are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no No stop order suspending the use effectiveness of the Memorandum Registration Statement or enjoining the offering qualification or sale registration of the Shares will have been issued under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceedings for that purpose or a similar purpose will shall have been initiated or will be pending orthreatened by any securities or other governmental authority (including, to without limitation, the knowledge of the Placement Agent or the CompanyCommission), will be contemplated; and any request for additional information on the part of the SEC or staff of any securities or other governmental authority of a state wherein (including, without limitation, the Shares are being offered for additional information will Commission) shall have been complied with to the satisfaction of counsel for the staff of the Commission or such other authorities and after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement AgentAgent and the Placement Agent did not reasonably object thereto in good faith.
(b) On Since the date respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been (i) any change in the capital stock or long-term debt of the Memorandum Company or any of its Subsidiaries or any change, or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, general affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, or (ii) any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in or contemplated by the Registration Statement or the Prospectus, the effect of which, in any such case described in clauses (i) and (ii) above, is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(c) The Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that (i) the Memorandum Registration Statement, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the counsel to the Placement Agent, is material, or omits to state any fact which, in the opinion of the counsel to the Placement Agent, is material and any amendments or supplements thereto will contain all material statements which are is required to be stated therein in accordance with or is necessary to make the Act and statements therein not misleading, or (ii) the Regulations and will conform in all material respects to the requirements of the Act and the RegulationsProspectus, and neither the Memorandum nor or any amendment or supplement thereto will contains an untrue statement of a fact which, in the opinion of the counsel to the Placement Agent, is material, or omits to state any fact which, in the opinion of the counsel to the Placement Agent, 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.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) The Placement Agent shall have received (i) from Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, corporate counsel to the Company, such counsel’s written opinion, addressed to the Placement Agent and dated the Closing Date, in form and substance as is set forth on Exhibit D attached hereto.
(f) The Placement Agent shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., such opinion or opinions, dated the Closing Date and addressed to the Placement Agent, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(g) The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement Agent and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are time and correct as of the Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement is effective and, to their knowledge, as of the Closing Date, no stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or are pending before or are contemplated by the Commission or any state or regulatory body;
(iii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and (A) the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made; , not misleading, and (iiB) since the respective dates no event has occurred as a result of which information it is given necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the MemorandumProspectus, there will not have has been any material adverse no change in the financial conditionposition or results of operation of the Company and its Subsidiaries that would reasonably be expected to result in a Material Adverse Effect, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations operations, business or affairs prospects of the Company from that and its Subsidiaries taken as a whole, except as set forth or contemplated in the MemorandumProspectus.
(h) The Shares shall be registered under the Exchange Act and shall have been approved for quotation on the American Stock Exchange and the Shares shall be listed and admitted and authorized for trading on the American Stock Exchange, except changes subject only to official notice of issuance. Satisfactory evidence of such actions shall have been provided to the Placement Agent.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Memorandum indicates might occur Closing Date, prevent the issuance or sale of the Shares; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares.
(j) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act before 5:30 P.M. EST on the second business day after the date thereof; of this Agreement.
(k) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.
(l) The Company shall have entered into Purchase Agreements with each of the Investors.
(m) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq Stock Market, LLC or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum or maximum prices or maximum ranges for prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) since the date United States shall have become engaged in hostilities, or the subject of the Memoranduman act of terrorism, there shall have been no material transaction, contract an escalation in hostilities involving the United States or agreement entered into there shall have been a declaration of a national emergency or war by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and United States or (iv) no actionthere shall have occurred any other calamity or crisis or any change in general economic, suit political or proceeding at law financial conditions in the United States or elsewhere, if the effect of any such event in equity will be pending orclause (iii) or (iv) makes it, to in the best sole judgment of the knowledge Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the Company, threatened against Shares on the Company which would be required to be set forth terms and in the Memorandum, other than as set forth therein, manner contemplated by the Registration Statement and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumProspectus.
(cn) The NASD shall have raised no objection to the fairness and reasonableness of the placement agency terms and arrangements.
(o) The Placement Agent will shall have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel copies of the assignment executed Lock-Up Agreements executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of each person listed on Exhibit B attached C hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following and such Lock-Up Agreements shall be in full force and effect on the Closing Date.
(fp) Within three business days following Prior to the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory furnished to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇such further information, certificates or documents as the Placement Agent shall have reasonably requested. ▇▇▇▇▇▇▇▇▇All opinions, ▇▇▇▇▇▇ ▇▇▇▇letters, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ evidence and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have certificates mentioned above or elsewhere in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
(j) . The Company shall have entered into an agreement will furnish you with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject such conformed copies of such patent applicationopinions, which such agreements certificates, letters and other documents as you shall be reasonably satisfactory to the Placement Agentrequest.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agency Agreement (Immtech Pharmaceuticals, Inc.)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject (as to cause the placement of the date hereof and on the Closing Date) Notes, as provided herein, shall be subject, in its reasonable discretion, to the continuing accuracy of and compliance with the representations and warranties of the Company hereincontained herein and in each certificate and document contemplated under this Agreement to be delivered to the Placement Agent, as of the date hereof and as of each Closing Date to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) On At the time of each closing for a series of Notes the Chief Executive Officer or prior the Chief Financial Officer of the Company (in the form shown as Exhibit A) shall certify to the Closing DatePlacement that in the best of their knowledge:
(i) the Company is a limited liability company, duly organized and validly existing, and in good standing under the laws of Florida with full power and authority, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the related Prospectus;
(ii) except as described in the Registration Statement, the Notes are validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid, and nonassessable, without any personal liability attaching to the ownership thereof, and to the knowledge of such counsel will not be issued in violation of any preemptive rights;
(iii) the Company is not currently offering any securities for sale except as described in the Registration Statements then current;
(iv) there is no order suspending litigation, arbitration, claim, governmental or other proceeding (formal or informal), or investigation pending or to the use knowledge of such counsel, threatened with respect to the Company, or its operations, business, properties, or assets except as may be properly described in the Prospectus or as individually or in the aggregate do not now have and cannot reasonably be expected in the future to have a material adverse effect upon the operations, business, properties, or assets of the Memorandum Company.
(v) the Company is not in violation of, or enjoining in default with respect to, any law, rule, regulation, order, judgment, or decree, except as may be properly described in the offering Prospectus or sale such as in the aggregate do not now have and cannot reasonably be expected in the future to have a material adverse effect upon the operations, business, properties, or assets of the Shares will have Company, nor, to the knowledge of such counsel, must the Company take any action in order to avoid any such violation or default;
(vi) neither the Company, nor any other party is now in violation or breach of, or in default with respect to, complying with any material provision of any contract, agreement, instrument, lease, license, arrangement, or understanding known to such counsel which is material to the Company;
(vii) the Company is not in violation or breach of, or in default with respect to, any term of its certificate of incorporation (or other charter document) or bylaws;
(viii) the descriptions of any contract, agreement, instrument, lease, or license required to be described in the Registration Statement or the Prospectus are correct in all material respects. any contract, agreement, instrument, lease, or license required to be filed as an exhibit to the Registration Statement has been filed with the Commission as an exhibit to the Registration Statement or has been incorporated as an exhibit by reference into the Registration Statement;
(ix) no person or entity has the right to require registration of the securities of the Company because of the filing or effectiveness of the Registration Statement;
(x) the Registration Statement has become effective under the Act. And no Stop Order has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be pending or, to threatened; the knowledge of Registration Statement has become effective under the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement AgentAct.
(bxi) On the date of the Memorandum Registration Statement and the Closing Date (i) the Memorandum Prospectus, and any amendments amendment or supplements supplement thereto will contain all material statements which are required comply as to be stated therein in accordance with the Act and the Regulations and will conform form in all material respects to with the requirements of the Act and the Regulations; and
(xii) since each Closing Date, and neither the Memorandum nor any no event has occurred which should have been set forth in an amendment or supplement thereto will contain any untrue statement of a material fact to the Registration Statement or omit to state any material fact required to be stated therein or necessary to make the statements therein Prospectus which has not misleading, in light of the circumstances under which they were made; (ii) since the respective dates as of which information is given in the Memorandum, there will not have been any material adverse change in the financial condition, results of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit such an amendment or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandumsupplement.
(cb) The Placement Agent will have received evidence reasonably All proceedings taken in connection with the issuance, sale, transfer, and delivery of the Notes shall be satisfactory in form and substance to the Placement Agent and the Placement Agent shall have received from such counsel for the Placement Agent a favorable opinion, dated as of each Closing Date with respect to such of the matters set forth under Section 9(b), and with respect to such other related matters, as the Placement Agent may reasonably request.
(c) FINRA, upon review of the terms of the public offering of the Notes, shall not have objected to the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have participation in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent applicationoffering.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory Prior to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the or on each Closing Date, the Company shall applyhave provided to the Placement Agent copies of the agreements referred to in Section 2(O) and such additional certificates or documents that the Placement Agent reasonably requests as to the accuracy, on an expedited basis, for listing as to the Corporation Records Service published by Standard representation and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual warranties of the Company and shall use as to the performance of the Company or its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.obligations hereby
(ge) The Any certificate or other document signed by any officer of the Company and delivered to the Placement Agent or to counsel for the Placement Agent shall have appointed be deemed a transfer agent reasonably satisfactory representation and warranty by such officer individually and by the Company hereunder to the Placement Agent as to the statements made therein. If any condition to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory 's obligations hereunder to be fulfilled prior to or at any Closing Date is not so fulfilled, the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇may terminate this Agreement or, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment shall be reasonably satisfactory to the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from if the Placement Agent providing so elects, in writing, waive any such conditions which have not been fulfilled or extend the terms and costs thereof are commercially reasonabletime for their fulfillment.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The Spartan’s obligations of the Placement Agent under this Agreement to act as a placement agent hereunder are subject (as of the date hereof and on the Closing Date) as of each Closing), to the accuracy of and compliance with the representations and warranties of the Company herein, and to the accuracy of the statements of the Company made pursuant to the provisions hereof and to the performance by each of the Company of its obligations covenants and agreements hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no order suspending the use of the Memorandum or enjoining the offering or sale of the Shares will have been issued From and no proceedings for that purpose or a similar purpose will have been initiated or will be pending or, to the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.
(b) On the date of the Memorandum and the Closing Date (i) the Memorandum and any amendments or supplements thereto will contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and will conform in all material respects to the requirements of the Act and the Regulations, and neither the Memorandum nor any amendment or supplement thereto will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made; (ii) since after the respective dates as of which information is given in the Memorandum:
(i) there shall not have been any change in the capital stock of the Company or any material change in the long-term debt of the Company, except as set forth in or contemplated by the Memorandum and except to amend the certificate of designation for the Series C Preferred Stock to increase the number of shares of Series C Preferred Stock designated in order to permit the issuance of the maximum number of such shares issuable to the Placement Agent pursuant to Section 3 of the Advisory Agreement;
(ii) there will shall not have been any material adverse change in the general affairs, management, financial conditionposition, results result of operations or affairs of the Company from that set forth or contemplated in the Memorandum, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations prospects of the Company, other than as set forth in or contemplated by the Memorandum.Memorandum or this Agreement;
(ciii) The Placement Agent will the Company shall not have received evidence reasonably satisfactory to sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, if in the judgment of the Placement Agent any such development referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable to consummate the sale and the Placement Agent's counsel delivery of the assignment Warrants by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(hb) The Company Since the respective dates as of which information is given herein, there shall have entered into employment agreements reasonably satisfactory to been no litigation instituted against the Placement Agent with each Company and since such dates there shall be no proceeding instituted or threatened against the Company or any of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇its officers or directors, ▇▇▇▇▇▇ ▇▇▇▇before or by any federal, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ state or county court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇adversely affect the business, properties, financial condition, results of operations or prospects of the Company.
(ic) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to Each of the representations and warranties of the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such assignment contained herein shall be reasonably satisfactory true and correct at the signing of this Agreement and at each Closing as if made at such Closing, and all covenants and agreements herein contained to be performed on the Placement Agent.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby part of the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and conditions herein contained to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased fulfilled or complied with by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonableat or prior to each Closing shall have been duly performed, fulfilled or complied with.
Appears in 1 contract
Sources: Placement Agent Agreement (Lipella Pharmaceuticals Inc.)
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided herein shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the judgment of the Placement Agent, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or the Nasdaq Global Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the NASD or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the New Money Offering, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Ropes & ▇▇▇▇ LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Ropes & ▇▇▇▇ LLP, special counsel to the Company with respect to patent and proprietary rights relating to Antara, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special counsel to the Company with respect to patent and proprietary rights relating to Factive, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Company with respect to matters regarding laws and regulations of the U.S. Food and Drug Administration, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto. Counsel rendering the foregoing opinions in (d), (e), (f) and (g) may rely as to questions of law not involving the laws of the United States of America upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(h) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(i) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2002, 2003, 2004, 2005 and 2006 contained in the Prospectus.
(j) You shall have received by or on the Closing Date, a bring-down comfort letter, dated as of the Closing Date (or one business day prior thereto), from Ernst & Young LLP addressed to you, which shall reaffirm the statements made in the letter referenced in (i) above.
(k) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Memorandum and Registration Statement, the Closing Date (i) Pricing Disclosure Package, the Memorandum Prospectus, and any amendments or supplements thereto will contain thereto, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations or affairs of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the share capital or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge share capital of the Company, threatened against or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which would be required to be set forth in the Memorandum, other than as set forth therein, has been sustained or will have been sustained and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandumwhich has a Material Adverse Effect.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(gl) The Company shall have appointed a transfer agent furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(m) Prior to the execution of this Agreement, you shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Placement Agent.
(h) your counsel. The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent will furnish you with each such number of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject conformed copies of such patent applicationopinions, which such assignment certificates, letters and documents as you shall be reasonably satisfactory to the Placement Agentrequest.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agent Agreement (Oscient Pharmaceuticals Corp)
Conditions of Placement Agent’s Obligations. The Your obligations of the Placement Agent hereunder are as provided shall be subject (as of the date hereof at all times on and on prior to the Closing Date) Date to the accuracy of and compliance with the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, hereunder and to the following additional conditions:
(a) On The Registration Statement shall have been filed and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective as promptly as possible but in no event later than the Closing Date and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, the Prospectus, or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which, in each case the effect of which is such as to make it, in the judgment of the Placement Agent, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or the Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, the Prospectus, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Cash Offer, shall have been executed in a manner reasonably satisfactory to Placement Agent's Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Ballard Spahr Andrews & Ingersoll, LLP, counsel for the Company, dated ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇res▇▇▇ ▇▇ ▇▇u, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Hamilton, Brook, Smith & Reynolds, P.C., patent counsel for the Compan▇, ▇▇▇▇▇ ▇▇▇ ▇▇os▇▇▇ ▇ate ▇▇▇▇▇▇▇ed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Covington & Burling, patent counsel to the Company, dated the Closing ▇▇▇▇ ▇▇▇▇ess▇▇ ▇▇ ▇ou, substantially in the form of Exhibit B-3 hereto. Counsel rendering the foregoing opinions in (d), (e), and (f) may rely as to questions of law not involving the laws of the United States of America or the Commonwealth of Pennsylvania, upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Placement Agent, and to your counsel.
(g) You shall have received on the Closing Date an opinion of Testa, Hurwitz & Thibeault, LP and Shearman & Sterling, in form and su▇▇▇▇▇ce ▇▇▇▇▇▇act▇▇▇ ▇▇ ▇▇▇, ▇ith r▇▇▇▇▇▇ ▇o the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(h) At the time of the execution of this Agreement, you shall have received from Deloitte & Touche LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information for the fiscal years prior 2000, 2001, and 2002 and the six months ended September 30, 2002 contained in the Prospectus.
(i) You shall have received by or on the effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date (or one business day prior thereto) as the case may be, from Deloitte & Touche LLP addressed to you which shall reaffirm the statements made in the letter referenced in (h) above.
(j) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Deloitte & Touche LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (h) and (i) above.
(k) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the use effectiveness of the Memorandum or enjoining the offering or sale of the Shares will have Registration Statement has been issued and no proceedings for that purpose or a similar purpose will have been initiated instituted or will be are pending or, to or threatened under the knowledge of the Placement Agent or the Company, will be contemplated; and any request on the part of the SEC or any securities authority of a state wherein the Shares are being offered for additional information will have been complied with to the satisfaction of counsel for the Placement Agent.Securities Act;
(biii) On when the Registration Statement became effective and at all times subsequent thereto up to the date of such certificate, the Memorandum Registration Statement and the Closing Date (i) the Memorandum Prospectus, and any amendments or supplements thereto will contain thereto, contained all material statements which are information required to be stated included therein in accordance with by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and will conform the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the RegulationsRules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and neither the Memorandum nor any amendment or supplement thereto will contain thereto, did not and does not include any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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; and
(iiiv) since subsequent to the respective dates as of which information is given in the MemorandumRegistration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there will has not have been (a) any material adverse change in the condition (financial conditionor otherwise), results of operations earnings, operations, business or affairs business prospects of the Company from and its subsidiaries considered as one enterprise, (b) any transaction that set forth or contemplated in is material to the MemorandumCompany and its subsidiaries considered as one enterprise, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement transactions entered into by the Company, other than in the ordinary course of business, which would be required (c) any obligation, direct or contingent, that is material to be set forth the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the Memorandumordinary course of business, other than as set forth therein; and (ivd) no action, suit any change in the capital stock or proceeding at law or in equity will be pending or, outstanding indebtedness of the Company that is material to the best Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the knowledge capital stock of the Company, threatened against or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which would be required to be set forth in has been sustained or will have been sustained and which has a Material Adverse Effect or a Material Adverse Effect on the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best ability of the knowledge of Company to perform its obligations under the Company, threatened against Cash Offer or consummate the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the MemorandumCash Offer.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(gl) The Company shall have appointed a transfer agent furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(m) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth on Schedule A hereto.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the Securities. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Placement Agent.
(h) your counsel. The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent will furnish you with each such number of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject conformed copies of such patent applicationopinions, which such assignment certificates, letters and documents as you shall be reasonably satisfactory to the Placement Agentrequest.
(j) The Company shall have entered into an agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby the Company shall assume the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ shall waived any and all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application, which such agreements shall be reasonably satisfactory to the Placement Agent.
(k) Within 90 days from the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from the Placement Agent providing the terms and costs thereof are commercially reasonable.
Appears in 1 contract
Sources: Placement Agreement (Alkermes Inc)
Conditions of Placement Agent’s Obligations. The respective obligations of the Placement Agent hereunder and the Investors and the closing of the sale of the Units are subject (as of the date hereof and on the Closing Date) to the accuracy of and compliance with the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) On or prior to the Closing Date, no No stop order suspending the use effectiveness of the Memorandum Registration Statement or enjoining the offering qualification or sale registration of the Shares will have been issued Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceedings for that purpose or a similar purpose will shall have been initiated or will be pending orthreatened by any securities or other governmental authority (including, to without limitation, the knowledge of the Placement Agent or the CompanyCommission), will be contemplated; and any request for additional information on the part of the SEC or staff of any securities or other governmental authority of a state wherein (including, without limitation, the Shares are being offered for additional information will Commission) shall have been complied with to the satisfaction of counsel for the staff of the Commission or such other authorities and after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement AgentAgent and the Placement Agent did not reasonably object thereto in good faith.
(b) On Since the date respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been (i) any change in the capital stock or long-term debt of the Memorandum Company or any of its Subsidiaries or any change, or any development involving a prospective change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, general affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, or (ii) any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in or contemplated by the Registration Statement or the Prospectus, the effect of which, in any such case described in clauses (i) and (ii) above, is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Prospectus.
(c) The Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that (i) the Memorandum Registration Statement, or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the counsel to the Placement Agent, is material, or omits to state any fact which, in the opinion of the counsel to the Placement Agent, is material and any amendments or supplements thereto will contain all material statements which are is required to be stated therein in accordance with or is necessary to make the Act and statements therein not misleading, or (ii) the Regulations and will conform in all material respects to the requirements of the Act and the RegulationsProspectus, and neither the Memorandum nor or any amendment or supplement thereto will contains an untrue statement of a fact which, in the opinion of the counsel to the Placement Agent, is material, or omits to state any fact which, in the opinion of the counsel to the Placement Agent, 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.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) The Placement Agent shall have received (i) from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, corporate counsel to the Company, such counsel’s written opinion, addressed to the Placement Agent and dated the Closing Date, in form and substance as is set forth on Exhibit F-1 attached hereto, and (ii) from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in-house counsel for the Company, such counsel’s written opinion addressed to the Placement Agent and dated the Closing Date, in form and substance as is set forth on Exhibit F-2 attached hereto.
(f) The Placement Agent shall have received from ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C., such opinion or opinions, dated the Closing Date and addressed to the Placement Agent, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(g) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A, on the date of the Prospectus Supplement, the Auditors shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Auditors shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date .
(h) The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement Agent and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are time and correct as of the Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement is effective and, to their knowledge, as of the Closing Date, no stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Securities for offering or sale has been issued, and no proceeding for that purpose has been instituted or are pending before or are contemplated by the Commission or any state or regulatory body;
(iii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and (A) the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made; , not misleading, and (iiB) since the respective dates no event has occurred as a result of which information it is given necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the MemorandumProspectus, there will not have has been any material adverse no change in the financial conditionposition or results of operation of the Company and its Subsidiaries that would reasonably be expected to result in a Material Adverse Effect, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations operations, business or affairs prospects of the Company from that set forth or contemplated in the Memorandumand its Subsidiaries taken as a whole, except changes which the Memorandum indicates might occur after the date thereof; (iii) since the date of the Memorandum, there shall have been no material transaction, contract or agreement entered into by the Company, other than in the ordinary course of business, which would be required to be set forth in the Memorandum, other than as set forth therein; and (iv) no action, suit or proceeding at law or in equity will be pending or, to the best of the knowledge of the Company, threatened against the Company which would be required to be set forth in the Memorandum, other than as set forth therein, and no proceedings will be pending or, to the best of the knowledge of the Company, threatened against the Company before or by any Federal, state or other tribunal or agency wherein an unfavorable decision, ruling or finding would materially adversely affect the business, properties, financial condition or results of operations of the Company, other than as set forth in the Memorandum.
(c) The Placement Agent will have received evidence reasonably satisfactory to the Placement Agent and the Placement Agent's counsel of the assignment by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ to the Company of all rights and interest he may have in and to United States Patent Application number 08/825,686 and the heat transfer system which is the subject of such patent application.
(d) The Placement Agent will have received from the Company's counsel, Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A., a signed opinion, reasonably satisfactory to the Placement Agent and the Placement Agent's counsel.
(e) On the Closing Date, the Company and the Placement Agent shall enter into a financial consulting agreement, in the form of Exhibit B attached hereto, pursuant to which the Placement Agent will offer to provide financial consulting services to the Company for a period of 24 months following the Closing Date.
(f) Within three business days following the Closing Date, the Company shall apply, on an expedited basis, for listing the Corporation Records Service published by Standard and Poor's and/or ▇▇▇▇▇'▇ Industrial Manual and shall use its good faith efforts to have the Company's listing remain current for a period of five years following the Closing Date.
(g) The Company shall have appointed a transfer agent reasonably satisfactory to the Placement Agent.
(h) The Company shall have entered into employment agreements reasonably satisfactory to the Placement Agent with each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇Prospectus.
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will have executed all documents necessary to assign to the Company all rights and interest he may have in and to United States Patent Application number 08/825,686 The Shares and the heat transfer system which is Warrant Shares shall be registered under the Exchange Act and shall have been approved for quotation on the Nasdaq Global Market and listed and admitted and authorized for trading on the Nasdaq Global Market, subject only to official notice of issuance. Satisfactory evidence of such patent application, which such assignment actions shall be reasonably satisfactory have been provided to the Placement Agent.
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(k) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act before 5:30 P.M. New York City time on the business day after the date of this Agreement.
(l) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.
(m) The Company shall have entered into an agreement Subscription Agreements with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ each of the Investors.
(n) Subsequent to the execution and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ whereby delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall assume have been suspended or minimum or maximum prices or maximum ranges for prices shall have been established on any such exchange or such market by the obligations of ▇▇. ▇▇▇▇▇▇▇▇▇ pursuant to that certain Agreement dated July 18Commission, 1997 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall waived any and all rights and interest he may have been declared by federal or state authorities or a material disruption has occurred in and to commercial banking or securities settlement or clearance services in the United States, (iii) the United States Patent Application number 08/825,686 and the heat transfer system which is shall have become engaged in hostilities, or the subject of an act of terrorism, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States or elsewhere, if the effect of any such patent applicationevent in clause (iii) or (iv) makes it, which such agreements shall be reasonably satisfactory to in the sole judgment of the Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the Units on the terms and in the manner contemplated by the Registration Statement and the Prospectus.
(ko) Within 90 days from The NASD shall have raised no objection to the fairness and reasonableness of the placement agency terms and arrangements.
(p) The Placement Agent shall have received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit E hereto, and such Lock-Up Agreements shall be in full force and effect on the Closing Date.
(q) Prior to the Closing Date, the Company will obtain "key man" insurance in the amount of $1,000,000 on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of which the Company shall be the beneficiary, which such insurance shall be purchased by the Company from have furnished to the Placement Agent providing such further information, certificates or documents as the terms Placement Agent shall have reasonably requested. All opinions, letters, evidence and costs thereof certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are commercially reasonablein form and substance reasonably satisfactory to counsel for the Placement Agent. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
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