Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission. (b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading. (c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus. (d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company. (e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date. (f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter. (h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date; (ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and (iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12 (i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company. (j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested. (k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Alteon Inc /De), Underwriting Agreement (Alteon Inc /De)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with All filings required by Rules 424, 430A and 434 of the Rules and Regulations and Section 4(a) of this Agreement. No shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or of any part amendment thereof shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted or, to the knowledge initiated or threatened; and any request of the Company Commission for additional information (to be included in the Registration Statement or the Purchaser, Final Prospectus or otherwise) shall be contemplated by the Commissionhave been complied with to your satisfaction.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Final Prospectus, or any amendment thereof or supplement theretothereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth contemplated in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein Final Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, neither the Company nor any of its subsidiaries shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the CompanyCompany and its subsidiaries, taken as a whole, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Final Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such the opinion or opinions from Morgof Fulbright & ▇▇, ▇▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇L.L.P., counsel for the PurchaserCompany, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties Each of the Company and CFC has been duly organized and is validly existing as a corporation in this Agreement are true good standing under the laws of its jurisdiction of incorporation. Each of the Company and correct, in all material respects, CFC has full corporate power and authority to own its properties and conduct its business as if made at currently being carried on and as of such Closing Datedescribed in the Registration Statement and Final Prospectus, and the Company has complied with all the agreements is duly qualified to do business as a foreign corporation and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;is in good standing in Connecticut.
(ii) No stop order The capital stock of the Company conforms as to legal matters to the description thereof contained in the Final Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and the holders thereof are not subject to personal liability by reason of being such holders. The Firm Shares to be issued and sold by the Company hereunder have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders. Except as otherwise stated in the Registration Statement and Final Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's charter, by-laws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except for 150,000 shares of Common Stock issued upon the conversion of the Series A Preferred Stock of the Company, neither the filing of the Registration Statement nor the offering or sale of the Firm Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company, except those rights which have been waived. To the best of such counsel's knowledge, except as described in the Registration Statement and Final Prospectus, there are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company.
(iii) All of the issued and outstanding shares of capital stock of CFC have been duly and validly authorized and issued and are fully paid and nonassessable, and, to the best of such counsel's knowledge, the Company owns of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares of such stock. To the best of such counsel's knowledge, except as described in the Registration Statement and Final Prospectus, there are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from CFC or the Company any shares of the capital stock of CFC.
(iv) To the best of such counsel's knowledge, the Company owns of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares of capital stock of AAT.
(v) The Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, issued and no proceeding for that purpose has been instituted or, to the best knowledge of their knowledgesuch counsel, is contemplated threatened by the Commission Commission.
(vi) The descriptions in the Registration Statement and Final Prospectus of statutes, legal and governmental proceedings, contracts and other documents fairly present in all material respects the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Final Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Final Prospectus or included as exhibits to the Registration Statement that are not described or included as required.
(vii) The Company has full corporate power and authority to enter into this Agreement, and this Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid, legal and binding obligation of the Company enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity); the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule or regulation, any agreement or instrument known to such counsel to which the Company is a party or by which it is bound or to which any of its property is subject, the Company's charter or by-laws, or any order or decree known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its respective properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company or for the consummation by the Company of the transactions contemplated hereby, including the issuance or sale of the Firm Shares by the Company, except such as may be required under the Act or state or regulatory body; andsecurities laws.
(iiiviii) The signers Registration Statement and the Final Prospectus, and any amendment thereof or supplement thereto (including any term sheet within the meaning of said certificate have carefully examined Rule 434 of the Rules and Regulations), comply as to form in all material respects with the requirements of the Act and the Rules and Regulations. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Final Prospectus, such counsel has participated in conferences with officers and any amendments thereof or supplements theretoother representatives of the Company, representatives of the independent accountants of the Company, representatives of the Purchaser and representatives of counsel for the Purchaser, at which the contents of the Registration Statement and the Final Prospectus and related matters were discussed and at which such counsel inquired of the representatives of the Company as to the materiality of the facts disclosed to such counsel and, although such counsel does not pass upon, and does not assume any responsibility for, the accuracy, completeness or fairness of any statement contained in the Registration Statement or the Final Prospectus and such counsel has made no independent check or verification thereof, based in part upon the foregoing, (A) relying as to materiality to a large extent upon the officers and representatives of the Company), no facts have come to such documents contain all counsel's attention that have led such counsel to believe that the Registration Statement (except as to the financial statements and information required notes thereto and other financial and statistical data included therein as to be included therein, which such counsel need not express any opinion or belief,) as of the Registration Statement, or any amendment thereof, does not contain any date of effectiveness contained an untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, misleading or that the Final Prospectus (except as to the financial statements and the Prospectusnotes thereto and other financial and statistical data included therein or excluded therefrom as to which such counsel need not express any opinion or belief), as amended of its date or supplementedas of the date of such opinion, does not include any contained or contains an untrue statement of material fact or omit omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, it is understood and agreed that other counsel to the Company are rendering opinions with respect to (i) the sections of the Final Prospectus entitled "Risk Factors -- If we cannot protect the confidentiality and proprietary nature of our trade secrets, our business and competitive position will be harmed," and "Risk Factors -- If we are found to be infringing on patents owned by others, we may be forced to obtain a license to continue the sale or development of our drugs and pay damages," and (ii) the sections of the Final Prospectus entitled "Risk Factors - If we do not obtain regulatory approval for our drug products we will not be able to sell our drug products," and "Risk Factors -- If our business and products, even after regulatory approval is obtained, fail to comply with regulatory requirements, our ability to sell products and conduct business will be harmed," and no opinions are expressed herein with respect to such sections or matters. In rendering any such opinion, such counsel may state that such counsel (i) expresses no opinion as to the laws of any jurisdiction other than the laws of the State of New York, the Delaware General Corporation Law and the federal laws of the United States, (Bii) since has assumed, without independent verification, that the effective date laws of the Registration StatementState of Minnesota are identical in all respects to the laws of the State of New York, noting that the laws of the State of Minnesota are likely to differ from the laws of the State of New York with respect to the matters covered by such counsel's opinion, that even if such laws were the same as the laws of the State of New York, judicial interpretations thereto in Minnesota may differ from judicial interpretations by New York courts and that such differences may be material, and (iii) expresses no opinions concerning the Federal Food, Drug, and Cosmetic Act or related rules and regulations or any intellectual property laws, statutes, rules or other regulation. In rendering such opinion such counsel may rely (i) as to matters of law other than New York, Delaware and federal law, upon the opinion or opinions of local counsel provided that the extent of such reliance is specified in such opinion and that such counsel shall state that although such counsel is not admitted to practice law in such jurisdiction, it has no reason to believe that they and you are not entitled to rely on such opinion and (ii) as to matters of fact, to the extent such counsel deems reasonable upon certificates of public officials and officers of the Company and its subsidiaries provided that the extent of such reliance is specified in such opinion.
(e) On the Closing Date, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not shall have been so set forth, (C) subsequent furnished to the respective dates as Purchaser the opinion of which information ▇▇▇▇ ▇▇▇▇▇▇, Esquire, special patent counsel for the Company, dated such Closing Date and addressed to you, to the effect that:
(i) such counsel represents the Company in certain matters relating to intellectual property, including patents, and is given familiar with the technology used by the Company in its business and the manner of its use and has read the portions of the Registration Statement and the ProspectusFinal Prospectus entitled "BUSINESS-Patents and Proprietary Rights" and "RISK FACTORS-Risks Related to Our Business-If we are unable to protect our proprietary technology, except as set forth we may not be able to compete effectively" (collectively, the "Patent Language");
(ii) the Patent Language contains accurate descriptions of the Company's Patents, Patent Applications and patents licensed to the Company and the statements in the Registration Statement Patent Language therein insofar as such statements constitute summaries of the legal matters, documents or as contemplated or required by any document contained or incorporated by reference proceedings referred to therein, fairly present the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind information called for with respect to its capital stocksuch legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(iii) such counsel has reviewed the Company's Patent Applications filed in the United States and outside the United States and in the opinion of such counsel, the Company's Patent Applications have been properly prepared and filed on behalf of the Company, and except as disclosed are being diligently pursued by the Company; the inventions described in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options Company's Patent Applications are assigned or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant licensed to the Company; to such counsel's Stock Option Plans)knowledge, warrants, convertible securities no other entity or other rights to purchase the capital stock, of individual has any right or claim in any Company inventions or Company's Patent Applications made solely by the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a wholepatent to be issued therefrom, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge such counsel's opinion each of the Company's Patent Applications discloses patentable subject matter; to such counsel's knowledge, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court there are no legal or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition proceedings pending (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided other than those relating to the Company by counsel Patent Applications) relating to the PurchaserCompany, from each officer and director the claimed inventions of the Company.'s Patents or the Company's Intellectual Property, and to such counsel's knowledge, no such material proceedings are threatened or contemplated by governmental authorities or others;
(jiv) The such counsel has no knowledge of any facts which would preclude the Company shall have furnished from having valid license rights or clear title to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.th
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the Purchaser Purchasers hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, :
(i) the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus;
(ii) there shall not have occurred any downgrading, nor shall any 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 possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any major disruption of settlements of securities or clearance services in the United States; and
(iv) there shall not have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a Purchaser, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the purchase and sale of and payment for the Shares.
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit B hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇▇▇▇▇ & ▇ren▇▇▇▇▇▇, ▇▇unsel LLP, counsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the each Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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 Purchaser’s Obligations. The obligations of Purchaser's obligation to purchase and pay for the Purchaser hereunder are Debenture is subject to the accuracysatisfaction or waiver, as prior to or at the Closing, of each of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇the opinion, dated as of such Closing Date and addressed to youthe Purchaser, confirming that they are independent public accountants within of ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the meaning Company, in form and substance reasonably satisfactory to counsel for the Purchaser.
(b) The representations and warranties of the Act Company contained in this Agreement shall be true and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, correct on and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates hereof and on and as of which specified financial information is given the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the ProspectusMemorandum (exclusive of any amendment or supplement thereto after the date hereof), as of a date not more than five days prior subsequent to the date of such letter), the conclusions and findings of said firm with respect to the most recent financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth statements in such prior letter.
(h) On the Closing DateMemorandum, there shall have been furnished no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to youhave a Material Adverse Effect.
(c) The sale of the Debenture hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(d) Subsequent to the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), as none of the PurchaserCompany or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer Material Adverse Effect.
(e) The Purchaser shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct, in all material respects, as if made at correct on and as of such the date hereof and on and as of the Closing Date, and the Company has complied with performed all the covenants and agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such the Closing Date;
(ii) No stop order At the Closing Date, since the date hereof or other order suspending since the effectiveness date of the Registration Statement or most recent financial statements in the Memorandum (exclusive of any amendment thereof or supplement thereto after the qualification of date hereof), except as described in the Firm Shares for offering Memorandum no event or sale development has been issuedoccurred, and no proceeding for that purpose information has been instituted orbecome known, that, individually or in the aggregate, has or would be reasonably likely to the best of their knowledge, is contemplated by the Commission or any state or regulatory bodyhave a Material Adverse Effect; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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 sale of the circumstances under which they were made, not misleading, (B) 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 Debenture hereunder has not been so set forth, enjoined (Ctemporarily or permanently).
(f) subsequent to On the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference thereinClosing Date, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly the Registration Rights Agreement executed lock up agreements, in the form provided to by the Company by counsel to and such agreement shall be in full force and effect at all times from and after the PurchaserClosing Date. On or before the Closing Date, from each officer and director of the Company.
(j) The Company shall have furnished to you Purchaser and counsel for the Purchaser shall have received such additional further documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will be in compliance comply with the provisions hereof only if they are reasonably satisfactory in form and substance all material respects to you the Purchaser and counsel for the Purchaser. The Company will shall furnish you with to the Purchaser such conformed copies of such documents, opinions, certificates, letters letters, schedules and other documents instruments in such quantities as you the Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sa Telecommunications Inc /De/)
Conditions of Purchaser’s Obligations. The obligations of Purchaser's obligation to purchase and pay for the Purchaser hereunder are Debenture is subject to the accuracysatisfaction or waiver, as prior to or at the Closing, of each of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇the opinion, dated as of such Closing Date and addressed to youthe Purchaser, confirming that they are independent public accountants within of Arter & Hadden, counsel for the meaning Company, in form a▇▇ ▇▇bst▇▇▇▇ ▇easonably satisfactory to counsel for the Purchaser.
(b) The representations and warranties of the Act Company contained in this Agreement shall be true and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, correct on and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates hereof and on and as of which specified financial information is given the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the ProspectusMemorandum (exclusive of any amendment or supplement thereto after the date hereof), as of a date not more than five days prior subsequent to the date of such letter), the conclusions and findings of said firm with respect to the most recent financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth statements in such prior letter.
(h) On the Closing DateMemorandum, there shall have been furnished no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to youhave a Material Adverse Effect.
(c) The sale of the Debenture hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(d) Subsequent to the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), as none of the PurchaserCompany or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer Material Adverse Effect.
(e) The Purchaser shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct, in all material respects, as if made at correct on and as of such the date hereof and on and as of the Closing Date, and the Company has complied with performed all the covenants and agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such the Closing Date;
(ii) No stop order At the Closing Date, since the date hereof or other order suspending since the effectiveness date of the Registration Statement or most recent financial statements in the Memorandum (exclusive of any amendment thereof or supplement thereto after the qualification of date hereof), except as described in the Firm Shares for offering Memorandum no event or sale development has been issuedoccurred, and no proceeding for that purpose information has been instituted orbecome known, that, individually or in the aggregate, has or would be reasonably likely to the best of their knowledge, is contemplated by the Commission or any state or regulatory bodyhave a Material Adverse Effect; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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 sale of the circumstances under which they were made, not misleading, (B) 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 Debenture hereunder has not been so set forth, enjoined (Ctemporarily or permanently).
(f) subsequent to On the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference thereinClosing Date, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, the Debenture in the form provided to of Exhibit C hereto and the Allonge in the form of Exhibit A hereto, in each case, executed by the Company by counsel to and such instrument shall be in full force and effect at all times after the PurchaserClosing Date. On or before the Closing Date, from each officer and director of the Company.
(j) The Company shall have furnished to you Purchaser and counsel for the Purchaser shall have received such additional further documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will be in compliance comply with the provisions hereof only if they are reasonably satisfactory in form and substance all material respects to you the Purchaser and counsel for the Purchaser. The Company will shall furnish you with to the Purchaser such conformed copies of such documents, opinions, certificates, letters letters, schedules and other documents instruments in such quantities as you the Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sa Telecommunications Inc /De/)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser ------------------------------------- hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth contemplated in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the such Closing Date, of Smith, Stratton, Wise, Hehe▇▇▇▇▇▇ & ▇ren▇▇▇, ▇▇unsel ▇ LLP, counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of DechertSchwegman, Lundberg, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., special patent counsel for the Company substantially in the form previously agreed upon, dated the such Closing Date.
(f) On each Closing Date, there shall have been furnished to you the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special regulatory counsel for the Company substantially in the form previously agreed upon, dated such Closing Date.
(g) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇▇▇▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇Bockius LLP, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(gh) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇KPMG LLP, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(hi) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXNasdaq National Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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
Sources: Purchase Agreement (Mgi Pharma Inc)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder to purchase the Shares under this Agreement are subject to the accuracy, as satisfaction of each of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) All the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct, in all material respects, on the Closing Date, with the same force and effect as if made on and as of the Closing Date; to the knowledge of the Company and the Operating Partnership, such representations and warranties were true and correct, in all Material respects, as of the date of this Agreement and on the Closing Date.
(b) The Prospectus Offering Memorandum (and any amendments or supplements thereto) shall have been filed with distributed to the Commission in accordance with Purchaser on or prior to the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such other date and time as to which the Purchaser may agree; and no stop order pursuant to applicable law suspending the effectiveness sale of the Registration Statement or of Shares in any part thereof jurisdiction shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, to the knowledge of the Company commenced or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement pending or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingthreatened.
(c) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusOffering Memorandum, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any material adverse change in the capital stock, or any material change in the short-term partners' equity or long-term debt of the Company, the Operating Partnership or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company Subsidiaries on a consolidated basis, except as described or contemplated in the Offering Memorandum, or any material adverse change change, or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business)change, in or affecting the general affairs, condition (financial or otherwise), business, key personnelprospects, propertymanagement, net worth properties, financial position, stockholders' equity, partners' equity or results of operations of the Company, thatthe Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which in your judgment, judgment makes it impractical impracticable or inadvisable to offer proceed with the public offering or deliver the Firm delivery of the Shares on the terms and in the manner contemplated in the Prospectus.Offering Memorandum; and other than as set forth in the Offering Memorandum, no proceedings shall be pending or, to the knowledge of the Company, after due inquiry, threatened against the Operating Partnership or the Company or any Property before or by any federal, state or other commission, board or administrative agency, where an unfavorable decision, ruling or finding could reasonably be expected to result in a Material Adverse Effect;
(d) You shall have received on and as of the Closing Date a certificate signed by the Chairman of the Board of Directors or President or Chief Executive Officer of the Company and the Chief Financial or Accounting Officer of the Company, in their capacities as of- ficers of the Company, on behalf of the Company for itself and as general partner of the Operating Partnership, satisfactory to you, to the effect set forth in subsections (a) through (c) of this Section;
(e) You shall have received on the Closing Date an opinion substantially in (satisfactory to you and counsel for the form previously agreed uponPurchaser), dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇ ▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, Company and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the CompanyOperating Partnership, to the effect that:
(i) The representations Company is duly qualified or registered as a foreign corporation to transact business and warranties is in good standing in each jurisdiction identified with an asterisk in Schedule I hereto. Each of the Company FIFC and FISC is duly qualified or registered as a foreign corporation to transact business and is in this Agreement are true and correct, good standing in all material respects, as if made at and as of such Closing Date, and the Company has complied each jurisdiction identified with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;an asterisk in Schedule I hereto.
(ii) No stop order or other order suspending the effectiveness The Operating Partnership and each of the Registration Statement or any amendment thereof or Financing Partnership and Securities, L.P. has been duly formed and is validly existing as a limited partnership in good standing under the qualification laws of its state of organization. The Operating Partnership and each of the Firm Shares for offering or sale Financing Partnership and Securities, L.P. has been issuedall requisite partnership power and authority to own, lease and operate its properties and other assets, to conduct the business in which it is engaged and proposes to engage, in each case, as described in the Offering Memorandum, and no proceeding for that purpose the Operating Partnership has been instituted orthe partnership power to enter into and perform its obligations under this Agreement. The Operating Partnership and each of the Financing Partnership and Securities, to the best of their knowledge, L.P. is contemplated by the Commission duly qualified or any state or regulatory body; andregistered as a foreign partnership and is in good standing in each jurisdiction identified with an asterisk in Schedule I hereto.
(iii) The signers To the knowledge of said such counsel (assuming due authorization, execution and delivery of each of the partnership agreements of the Operating Partnership, the Financing Partnership and Securities, L.P., by each of the parties thereto), all of the outstanding partnership interests of the Operating Partnership, the Financing Partnership and Securities, L.P. have been duly authorized, validly issued and fully paid and, except for Units not owned by the Company, are owned directly or indirectly by the Company or the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the Operating Partnership, the Financing Partnership, Securities, L.P., FIFC or FISC is in violation of or default under its charter, by-laws, certificate have carefully examined of limited partnership or partnership agreement, as the Registration Statement and the Prospectuscase may be, and none of such entities is in default in the performance or observance of any amendments thereof obligation, agreement, covenant or supplements thereto, and condition contained in any document (A) such documents contain all statements and information required to be included therein, as in effect on 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, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in such opinion) listed as an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant exhibit to the Company's Stock Option PlansAnnual Report on Form 10-K, to which such entity is a party or by which such entity may be bound, or to which any of the property or assets of such entity or any Property is subject to or bound by (it being understood that (i) such counsel need express no opinion with respect to matters relating to any contract, indenture, mortgage, loan agreement, note, lease, joint venture or partnership agreement or other instrument or agreement relating to the acquisition, transfer, operation, maintenance, management or financing of any property or assets of such entity or any other Property and (ii) such counsel may assume compliance with the financial covenants contained in any such document), warrantsexcept in each case for violations or defaults which in the aggregate are not reasonably expected to have a Material Adverse Effect.
(v) Each of this Agreement and the Registration Rights Agreement was duly and validly authorized and executed by each of the Company and the Operating Partnership.
(vi) The execution and delivery of this Agreement and the Registration Rights Agreement, convertible securities the issuance and sale of the Shares and the performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the Registration Rights Agreement and the consummation of the transactions herein and therein contemplated will not require, to such counsel's knowledge, any consent, approval, authorization or other rights order of any court, regulatory body, administrative agency or other governmental body (except such as may be required under the state securities, Blue Sky or real estate syndication laws in connection with the purchase of the Shares by the Purchaser) and did not and do not conflict with or constitute a breach or violation of or default under: (1) any document (as in effect on the date of such opinion) listed as an exhibit to purchase the capital stockCompany's Annual Report on Form 10-K, as amended, to which any such entity is a party or by which it or any of them or any of their respective properties or other assets may be bound or subject and of which such counsel is aware (it being understood that (i) such counsel need express no opinion with respect to matters relating to any contract, indenture, mortgage, loan agreement, note, lease, joint venture or partnership agreement or other instrument or agreement relating to the acquisition, transfer, operation, maintenance, management or financing of any property or assets of such entity or any other Property and (ii) such counsel may assume compliance with the financial covenants contained in any such document); (2) the certificate of limited partnership or partnership agreement, as the case may be, of the Operating Partnership, the Financing Partnership, and Securities, L.P. or the articles of incorporation or bylaws, as the case may be, of the Company, FIFC or FISC; (3) any of its subsidiariesapplicable law, rule or any material adverse change administrative regulation, except in each case for conflicts, breaches, violations or any development involving a prospective material adverse change (whether or not arising defaults that in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as aggregate would not have a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the CompanyMaterial Adverse Effect.
(jvii) The Company shall have furnished information in Exhibit A to you the Offering Memorandum under "Description of Common Stock," "Certain Federal Income Tax Considerations," "Risk Factors," "Restrictions on Transfers of Capital Stock" and "Federal Income Tax Considerations," to the extent that it constitutes statements of law, descriptions of statutes, rules or regulations, summaries of documents or legal conclusions, has been reviewed by such counsel for and is correct in all material respects and presents fairly the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requestedinformation required to be disclosed therein.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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
Sources: Purchase Agreement (First Industrial Realty Trust Inc)
Conditions of Purchaser’s Obligations. The several obligations of the Purchaser Purchasers hereunder to purchase the Firm Stock are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The That at the time of purchase you shall be furnished with signed copies of the following, addressed to the Purchasers and with Photostat copies or signed or conformed counterparts thereof for each of the other Purchasers:
(i) An opinion of counsel to the Company, stating in substance:
(A) That the Company has been duly incorporated and is at the time of purchase validly existing as a corporation in good standing under the laws of the State of Delaware, with charter power to carry on the business in which it is now engaged;
(B) That the subsidiaries of the Company named in the Prospectus shall have are validly organized and existing under the laws of the respective jurisdictions in which they are incorporated and that all of the outstanding capital stock of each such subsidiary company is owned by the Company and is not subject to any lien or encumbrance;
(C) That this Agreement has been filed with duly authorized, executed and delivered by the Commission Company;
(D) That the Purchased Stock has been duly authorized and, when issued and paid for by the Purchasers in accordance with the terms of this Agreement, shall be fully paid and nonassessable;
(E) That the Purchased Stock conforms in all material respects as to legal matters with the statements concerning the Purchased Stock in the Prospectus;
(F) That the statements of the law and legal conclusions in the Prospectus set forth in the section "The Company and Its Subsidiaries," ["Certain Terms and Description of Registered Stock"] and in the Annual Report of the Company on Form 10-K incorporated by reference in the Prospectus (in the sections "[insert appropriate sections of 10-K]") are to the best of the knowledge of said counsel true and accurate and do not omit to state any material facts required to be stated therein or necessary to make such statements not misleading;
(G) That (i) the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form with the requirements of Form S-3 and the Rules and Regulations, and (ii) the documents incorporated by reference in the Prospectus at the time the Registration Statement became effective and at the time of purchase (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) complied when filed pursuant to the Exchange Act as to form with the requirements of the Exchange Act and the Exchange Act Rules and Regulations;
(i) The original order of the Commission referred to in subsection (c) of Section 2 of this Agreement has been obtained and, to the best of the knowledge of said counsel, is in full force and effect; (ii) any required supplemental order of the Commission, referred to in subsection (c) of Section 2 of this Agreement, has been duly issued and, to the best of the knowledge of said counsel, is in full force and effect; and (iii) no further approval, authorization, consent, certificate or order of any Federal commission or regulatory authority is necessary with respect to the issue and sale of the Purchased Stock by the Company as contemplated in this Agreement;
(I) That all contracts of the Company and its subsidiaries that are required to be filed as exhibits to the Registration Statement under the Act and the Rules and Regulations have been so filed, and Section 4(athat to the extent required all material contracts of the Company and its subsidiaries have been properly described in the Registration Statement and Prospectus; and
(J) of this Agreement. No stop order suspending That such counsel has participated in the effectiveness preparation of the Registration Statement or of any part thereof shall have been issued and Prospectus and no proceedings for that purpose shall facts have been instituted or, come to the knowledge attention of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company such counsel to lead such counsel to believe that either the Registration Statement or the Prospectus, Prospectus at the time the Registration Statement or any amendment thereof thereto became effective, or the Prospectus or any amendment or supplement theretothereto when the Prospectus or such amendment or supplement was filed or the Prospectus as it may be amended or supplemented as of the time of purchase, contains an untrue statement of a material fact which, in your opinion, is material, or omits to state a material fact whichrequired to be stated therein or necessary to make the statement therein not misleading;
(ii) An opinion of Counsel for the Purchasers as to matters referred to in paragraph (a)(i) of this Section 5 under the subheadings (C), (D), (E) and (H) (except for the third clause, in your lieu of which such counsel shall state that they are not aware of any approval of any other regulatory body being so required), and that the Registration Statement and the Prospectus, as of the date the Registration Statement became effective (other than the financial statements and other financial and statistical information contained therein and Exhibit 12 to the Registration Statement, as to which such counsel need express no opinion), appear to comply as to form in all material respects with the requirements of Form S-3 and the Rules and Regulations. In addition such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company and representatives of the independent accountants of the Company at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in paragraph (a)(i) of this Section 5 under subheading (E)), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead them to believe that the Registration Statement or any amendment thereto when such Registration Statement or amendment became effective or the Prospectus or any supplement thereto when such supplement was filed contained an untrue statement of a material and is fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances in which they were made, not misleading.misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical data included in the Registration Statement or Prospectus or Exhibit 12 to the Registration Statement; and
(ciii) Except A letter, dated the time of purchase addressed to the Purchasers from the independent accountants for the Company to the effect that:
(A) they are independent accountants within the meaning of the Act and the applicable rules and regulations thereunder;
(B) in their opinion, the consolidated financial statements audited by them and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the rules and regulations with respect to registration statements on Form S-3;
(C) on the basis of procedures (but not an examination in accordance with generally accepted auditing standards) consisting of:
(1) reading the minutes of meetings of the stockholders and the Board of Directors of the Company and its consolidated subsidiaries since December 31, of the most recent preceding year as set forth in the Registration Statement or minute books, but in no event through a specified date not more than five business days prior to the date of delivery of such letter;
(2) reading the unaudited consolidated balance sheets and the unaudited consolidated statements of income, of cash flows and of retained earnings for the periods included in the Company's quarterly reports on Form 10-Q for the current year (for the quarters ended March 31, June 30 and September 30, as contemplated or required by any document contained or the case may be), incorporated by reference therein in the Registration Statement;
(3) reading the unaudited consolidated financial data of the Company and subsidiaries for the period from the latest quarterly reporting period to the date of the latest available interim data, furnished by the Company, officials of the Company having advised them that no such consolidated financial data as of any date or for any period subsequent to such latest date were available; and
(4) making inquiries of certain officials of the respective dates Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of which information is given the foregoing procedures that caused them to believe that:
(a) the unaudited condensed consolidated financial statements incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the ProspectusExchange Act Rules and Regulations or said financial statements are not stated on a basis substantially consistent with that of the audited financial statements incorporated by reference in the Registration Statement;
(b) for the period from the date of the latest quarterly report on Form 10-Q to the date of the latest available unaudited consolidated income statement read by such accountants, there were any decreases, as compared with the Company shall not corresponding period of the prior year, in consolidated total operating revenue, in operating income or in net income, except in all instances for changes or decreases which the Registration Statement discloses have incurred any material liabilities occurred or obligations, direct or contingentmay occur, or entered into they shall state any material transactionsspecific decreases;
(c) at the date of the latest available balance sheet read by such accountants, or declared or paid any dividends or made any distribution and at a subsequent specified date not more than five days prior to the date of any kind with respect to its capital stock; and delivery of such letter, there shall not have been was any change in the capital stock, or any material change in the short-term common stock or long-term debt of the Company, or any decrease in total stockholders' equity as compared with amounts shown on the latest unaudited condensed consolidated balance sheet included in the Registration Statement (including documents incorporated by reference), [except as to dividends on common stock that have been declared in the normal course of business, amortization of long-term debt discount or premium, the retirement of long-term debt to satisfy mandatory sinking fund requirements, and the issuance of options (other than options granted pursuant to common stock in connection with the Company's Stock Option Plans)long-term incentive plans and thrift plans,](1) or, warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of the latest available unaudited condensed consolidated income statement read by such letter accountants to the subsequent specified date, any decreases, as compared with the corresponding period in the preceding year, in consolidated total operating revenues, in operating income or in ____________________ (or1) To be omitted, with respect to matters involving or completed and included, as appropriate. net income, except in all instances for changes or developments since decreases which the respective dates Registration Statement (including documents incorporated by reference) discloses have occurred or may occur, or except as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth otherwise noted in such prior letter.
(hD) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated specified dollar amounts (or percentages derived from such Closing Date and addressed to you, signed dollar amounts) under captions specified by the chief executive officer Purchasers and agreed to by such independent accountants contained in the chief financial officer Registration Statement (including documents incorporated by reference), in each case to the extent that such dollar amounts and percentages are obtained from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation, to the effect that:
(i) The representations and warranties of the Company is in this Agreement are true and correctagreement with such records or computations made therefrom, except as otherwise specified in all material respects, as if made 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 such Closing Dateletter;
(iib) No That no amendment to the Registration Statement in the form in which the Registration Statement is effective at the date of this Agreement, filed subsequent to the execution of this Agreement, or supplement to the Prospectus constituting a part of such Registration Statement, filed subsequently to the execution of this Agreement, shall contain information substantially different from that contained in such Registration Statement or Prospectus which shall be unsatisfactory in substance to you or unsatisfactory in form to Counsel for the Purchasers;
(c) That prior to the time of purchase, no stop order or other order suspending with respect to the effectiveness of the Registration Statement or any amendment thereof or shall have been issued under the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated Act by the Commission or any state proceedings therefor initiated or regulatory bodythreatened; and
(iii) The signers that at the time of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, purchase the Registration Statement, as amended or any amendment thereofsupplemented, does shall not contain any an 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, and that the Prospectus, as amended or supplemented, does shall not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ;
(Bd) That 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and prior to the Prospectustime of purchase, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any no material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any unfavorable change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiariessubsidiaries on a consolidated basis, financial or otherwise, shall have taken place (other than as a whole, and (D) except as stated referred to in the Registration Statement and Prospectus); and the ProspectusCompany will, there is at the time of purchase, deliver to you, with Photostat copies for delivery to each of the Purchasers, a certificate of its Chairman of the Board or its President or a Vice President and its Treasurer or an Assistant Treasurer that such a change has not pending, or, occurred;
(e) That subsequent to the knowledge date of this Agreement and prior to the Company, threatened or contemplated, time of purchase there shall not have occurred (i) any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change downgrading in the condition (financial or otherwise), business or results rating of operations any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act); (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in your reasonable judgment, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and its subsidiaries, taken as a whole. 12payment for the Purchased Stock; and
(if) The Purchaser shall have received duly executed lock up agreements, in That the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company shall have furnished performed such of its obligations under this Agreement as are to you and counsel for be performed by the Purchaser such additional documents, certificates and evidence as you terms hereof at or they may have reasonably requestedbefore the time of purchase.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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 Purchaser’s Obligations. The obligations of the Purchaser ------------------------------------- hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth contemplated in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein Prospectus, subsequent to the respective dates as of which information is given incorporated by reference in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares to consultants, upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the such Closing Date, of Smith, Stratton, Wise, Hehe▇▇▇▇▇▇ & ▇ren▇▇▇, ▇▇unsel ▇ LLP, counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of DechertSchwegman, Lundberg, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., special patent counsel for the Company substantially in the form previously agreed upon, dated the such Closing Date.
(f) On each Closing Date, there shall have been furnished to you the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special regulatory counsel for the Company substantially in the form previously agreed upon, dated such Closing Date.
(g) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇▇▇▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇Bockius LLP, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(gh) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇KPMG LLP, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(hi) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares to consultants, upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-short- term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXNasdaq National Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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
Sources: Purchase Agreement (Mgi Pharma Inc)
Conditions of Purchaser’s Obligations. The obligations of the ------------------------------------- Purchaser hereunder under this Agreement are subject to the accuracy, satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance respectively. The Company shall have performed or complied with all representations, warranties and agreements of the Company agreements herein contained herein, and required to be performed or complied with by it at or prior to the performance by the Company of its obligations hereunder and to the following additional conditions:Closing Date.
(ab) The Prospectus Offering Memorandum shall have been filed with printed and copies distributed to the Commission in accordance with Purchaser not later than 5:00 p.m., New York City time, on the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such later date and time as to which you may agree, and no stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of Series A Notes in any part thereof jurisdiction referred to in Section 4(e) shall have been issued and no proceedings proceeding for that purpose shall have been instituted commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of any of the Series A Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company, threatened against, the Company or any of its subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would prohibit, interfere with or adversely affect the Purchaserissuance of the Series A Notes or would have a Material Adverse Effect, shall be contemplated by or in any manner draw into question the Commission.
(b) The Purchaser shall not have advised validity of this Agreement, the Company that Note Indenture, the Series A Notes or the Registration Statement or Rights Agreement; and no stop order preventing the Prospectususe of the Offering Memorandum, or any amendment thereof or supplement thereto, contains an untrue statement or any order asserting that any of fact which, in your opinion, is material, or omits the transactions contemplated by this Agreement are subject to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingregistration requirements of the Act shall have been issued.
(cd) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusOffering Memorandum, the Company (i) there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or the long-term debt, or material increase in the short- term debt, of the Company and its subsidiaries considered as a whole from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock, and (iii) neither the Company nor any of its subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, that are material, individually or entered into any material transactionsin the aggregate, or declared or paid any dividends or made any distribution to the Company and its subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet included in the Offering Memorandum. Since the date hereof and since the dates as of any kind with respect to its capital stock; and which information is given in the Offering Memorandum, there shall not have been any change in Material Adverse Change.
(e) You shall have received certificates, dated the capital stockClosing Date, signed by (i) the President or any material change Vice President and (ii) a principal financial or accounting officer of the Company confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 7.
(f) You shall have received on the short-term or long-term debt Closing Date an opinion (satisfactory to you and your counsel), dated the Closing Date, of Ropes & Gray, counsel for the Company, or any issuance in the form of options Exhibit A hereto. You shall also have received an opinion (other than options granted pursuant reasonably satisfactory to the Company's Stock Option Plansyou and your counsel), warrantsdated the Closing Date, convertible securities or other rights of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ with respect to purchase the capital stock of the Company or any material adverse change or any development all matters involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the ProspectusNew York law.
(dg) You shall have received an opinion substantially in the form previously agreed upon(satisfactory to you and your counsel), dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇▇▇▇▇▇, dated such Closing Date and addressed to youEsq., confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of General Counsel for the Company, to the effect that:
(i) The representations and warranties To the best of such General Counsel's knowledge, the Company and its subsidiaries own or possess adequate licenses or other rights to use all trademarks, service marks and trade names necessary to conduct the business now or proposed to be conducted by them as described in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, the Offering Memorandum and the Company has complied and its subsidiaries have not received any notice of infringement of or conflict with all (and know of no such infringement of or conflict with) asserted rights of others with respect to any trademarks, service marks or trade names which could reasonably be expected to result in any material adverse effect upon the agreements Company and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Datesubsidiaries taken as one enterprise;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to To the best of their such General Counsel's knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate Company and its subsidiaries have carefully examined the Registration Statement obtained all permits, consents and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information authorizations required to be included therein, obtained by them under the Registration Statement, Environmental Laws except where the failure to do so would not individually or any amendment thereof, does not contain any untrue statement of in the aggregate have a material fact adverse effect on the current or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingfuture consolidated financial position, 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, stockholders' equity (Bdeficit) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, subsidiaries taken as a wholeone enterprise, and (D) any such permits, consents and authorizations remain in full force and effect. To the best of such General Counsel's knowledge, the Company and its subsidiaries are in compliance with the Environmental Laws in all respects except as stated where the failure to be in compliance would not individually or in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is aggregate have a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in effect on the condition current or future consolidated financial position, stockholders' equity (financial or otherwise), business deficit) or results of operations of the Company and its subsidiaries, subsidiaries taken as one enterprise, and there is no pending or, to the Company's or its subsidiaries' knowledge, threatened, action or proceeding against the Company and its subsidiaries alleging violations of the Environmental Laws; and
(iii) To the best of such General Counsel's knowledge, neither the Company nor ICON Health & Fitness, Inc. is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a whole. 12party or by which it or any of its properties may be bound except for such violations or defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity (deficit) or results of operation of the Company and its subsidiaries taken as one enterprise.
(h) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ & Handler, LLP, your counsel, in form and substance reasonably satisfactory to you, covering such matters as are customarily covered in such opinions.
(i) At the time this Agreement is executed and delivered by the Company and on the Closing Date, you shall have received letters, substantially in the form previously approved by you, from Price Waterhouse LLP, Deloitte & Touche LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(j) ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ & Handler, LLP, shall have been furnished with such documents and opinions, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 7 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to you such further information, certificates and documents as you may reasonably request.
(l) The Company shall have entered into the Note Indenture and you shall have received counterparts, conformed as executed, thereof.
(m) The Company shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(n) The Purchaser shall have received duly executed lock up agreementsa solvency opinion, dated the Closing Date, of American Appraisal Associates, in the form provided satisfactory to the Company Purchaser and such opinion shall be accompanied by counsel a letter addressed to the Purchaser, from each officer and director of the CompanyPurchaser entitling it to rely on such opinion.
(jo) The Company shall have furnished obtained a consent under the Credit Agreement (as defined in the Note Indenture) in form and substance reasonably satisfactory to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXCompany. All such opinions, certificates, letters and other documents required by this Section 7 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and counsel for the Purchaseryou. The Company will furnish you the Purchaser with such conformed copies of such opinions, certificates, letters and other documents as you they shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the each Purchaser hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus prospectus supplement shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement Statements or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement Statements or the ProspectusProspectuses, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement Statements or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement Statements and the Prospectus, Prospectuses the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus.Prospectuses;
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit C hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇▇▇▇▇ & ▇ren▇▇▇▇▇▇, ▇▇unsel LLP, counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the each Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement Statements or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement Statements and the ProspectusProspectuses, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration StatementStatements, 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 ProspectusProspectuses, 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, (B) since the effective date of the Registration StatementStatements, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement Statements and the ProspectusProspectuses, except as set forth in the Registration Statement Statements or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the ProspectusProspectuses, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement Statements and the ProspectusProspectuses, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the CompanyMaterial Adverse Effect.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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 Purchaser’s Obligations. The obligations of the Purchaser Purchasers hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, :
(i) the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus;
(ii) there shall not have occurred any downgrading, nor shall any 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 possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any major disruption of settlements of securities or clearance services in the United States; and
(iv) there shall not have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a Purchaser, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the purchase and sale of and payment for the Shares.
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit B hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ Heher & ▇ren▇▇▇Brennan, ▇▇unsel counsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from MorgD▇▇▇, ▇▇▇▇▇ & ▇ock▇the▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall l have been furnished to you, as the Purchaser, each Purchaser a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made 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 such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) EXECUTION COPY subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. 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 Purchaser’s Obligations. The obligations of the Purchaser hereunder under this Agreement are subject to the accuracy, satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance respectively. The Company shall have performed or complied with all representations, warranties and agreements of the Company agreements herein contained herein, and required to be performed or complied with by it at or prior to the performance by the Company of its obligations hereunder and to the following additional conditions:Closing Date.
(ab) The Prospectus Offering Memorandum shall have been filed with printed and copies distributed to the Commission in accordance with Purchaser not later than 10:00 a.m. New York City time on the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such later date and time as to which you may agree, and no stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of Series C Notes in any part thereof jurisdiction shall have been issued and no proceedings proceeding for that purpose shall have been instituted commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance or sale of any of the Series C Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company, threatened against, the Company or any of the PurchaserSubsidiaries or Salstel before any court or arbitrator or any governmental body, shall be contemplated by agency or official that, if adversely determined, would prohibit, interfere with or adversely affect the Commission.
(b) The Purchaser shall not issuance or sale of the Series Notes or would have advised a Material Adverse Effect or in any manner draw into question the Company that validity of any of the Registration Statement Transaction Documents; and no stop order, injunction, restraining order, or order of any nature preventing the Prospectususe of the Offering Memorandum, or any amendment thereof or supplement thereto, contains an untrue statement or any order asserting that any of fact which, in your opinion, is material, or omits the transactions contemplated by this Agreement are subject to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingregistration requirements of the Act shall have been issued.
(cd) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusOffering Memorandum, the Company (i) there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or the long-term debt, or material increase in the short-term debt, of the Company or any of the Subsidiaries or Salstel from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of the Subsidiaries or Salstel on any class of its capital stock, and (iii) neither the Company nor any of the Subsidiaries nor Salstel shall have incurred any material liabilities or obligations, direct or contingent, that are material, individually or entered into any material transactionsin the aggregate, or declared or paid any dividends or made any distribution to the Company and its Subsidiaries and Salstel taken as a whole, and that are required to be disclosed on a balance sheet in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet included in the Offering Memorandum. Since the date hereof and since the dates as of any kind with respect to its capital stock; and which information is given in the Offering Memorandum, there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the ProspectusMaterial Adverse Change.
(de) You shall have received certificates, dated the Closing Date, signed by (i) the President or any Vice President and (ii) a principal financial or accounting officer of the Company confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 7.
(f) You shall have received on the Closing Date an opinion substantially in the form previously agreed upon(satisfactory to you and your counsel), dated the Closing Date, of Smith, Stratton, Wise, Hehe▇ & ▇renHolme ▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇LLP, United States counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties Each of the Company and each of the corporate Subsidiaries incorporated in this Agreement are true the United States (collectively, the "U.S. Corporate Subsidiaries") has been duly organized and correctis validly existing as a corporation in good standing under the laws of Colorado, in has all material respectsrequisite power and authority to own, lease and operate its assets and properties and to carry on its business as if made at it is currently being conducted and as described in the Offering Memorandum and each of such Closing DateUIH-SFCC, L.P. and UIH- SFCC Holdings, L.P. (the "Partnerships" and, together with the U.S. Corporate Subsidiaries, the "U.S. Subsidiaries") has been duly formed and is validly existing as a limited partnership under the laws of Colorado and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as it is currently being conducted and as described in the Offering Memorandum, and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction or place in which the Company has complied with all ownership, leasing and operation of its property and the agreements and satisfied all the conditions on conduct of its part business requires such qualification, except where failure to be performed so qualified would not individually or satisfied at or prior in the aggregate be reasonably likely to such Closing Date;have a Material Adverse Effect.
(ii) No stop order All the outstanding shares of capital stock or other order suspending the effectiveness equity interest of each of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has U.S. Subsidiaries have been duly authorized and validly issued, are fully paid and no proceeding for that purpose has been instituted nonassessable and were not issued in violation of any preemptive or similar rights (whether provided pursuant to Organizational Documents or, to the best knowledge of their knowledgesuch counsel, is contemplated by the Commission or any state or regulatory body; after due inquiry, contractually), and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, 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, (B) 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, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required Offering Memorandum, are owned by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingentdirectly, or entered into indirectly through one of the U.S. Subsidiaries, free and clear, to the best knowledge of such counsel after due inquiry, of any material transactionssecurity interest, not lien, adverse claim, equity or other encumbrance.
(iii) The authorized and outstanding capital stock of the Company is as set forth in the ordinary course of businessbalance sheet at June 30, or declared or paid any dividends or made any distribution of any kind 1997 included in the Offering Memorandum; and the Company's ownership interest with respect to its each of the U.S. Subsidiaries is as described in the Offering Memorandum. All of the outstanding shares of capital stockstock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights (whether pursuant to the Company's Organizational Documents or, to the best knowledge of such counsel, after due inquiry, contractually). The capital stock of the Company conforms as to legal matters in all material respects to the description thereof in the Offering Memorandum.
(iv) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Transaction Documents and to consummate the transactions contemplated thereby, including, without limitation, with the corporate power and authority to issue, sell and deliver the Securities as contemplated by this Agreement and to perform its obligations hereunder and thereunder.
(v) The Company has duly and validly authorized, executed and delivered this Agreement, and this Agreement is enforceable against the Company in accordance with its terms, except as enforcement of rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles. This Agreement conforms as to legal matters in all material respects to the summary description thereof in the Offering Memorandum.
(vi) The Company has duly and validly authorized, executed and delivered the Indenture and (assuming the due authorization, execution and delivery thereof by the Trustee) the Indenture is the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable. The Indenture conforms as to legal matters in all material respects to the summary description thereof in the Offering Memorandum.
(vii) The Series C Notes have been duly and validly authorized for issuance and sale to you by the Company pursuant to this Agreement and, when issued and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable. The Series C Notes, when issued, authenticated and delivered, will conform as to legal matters in all material respects to the summary description thereof in the Offering Memorandum.
(viii) The Series D Notes have been duly and validly authorized for issuance by the Company and, when issued and authenticated in accordance with the terms of the Indenture and the Registration Rights Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable.
(ix) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company, and is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity and (B) such counsel need express no opinion as to the enforceability of the indemnification or contribution provisions contained in Section 7 of the Registration Rights Agreement. The Registration Rights Agreement conforms, as to legal matters, in all material respects to the summary description thereof in the Offering Memorandum.
(x) The Warrant Agreement has been duly and validly authorized by the Company. The Warrant Agreement conforms as to legal matters in all material respects to the summary description thereof in the Offering Memorandum.
(xi) When the Series C Notes are issued and delivered pursuant to this Agreement, none of the Series C Notes will be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xii) Neither the Company nor any of the U.S. Subsidiaries is in violation of its respective Organizational Documents, or to the best of such counsel's knowledge after reasonable inquiry, is in material default in the performance of any obligation, agreement or condition contained in any permit or any bond, debenture, note or other evidence of indebtedness, except as disclosed in the ProspectusOffering Memorandum.
(xiii) Registration of the Series C Notes under the Act or qualification of the Indenture under the Trust Indenture Act of 1939, there has as amended, is not been any change required in connection with the capital stock (other than a change in offer, sale and delivery of the number of outstanding shares of Common Stock due Series C Notes to the issuance Purchaser or the initial placement of shares upon the exercise of outstanding options or warrants), or any material change in Series C Notes by the short-term or long-term debt, or any issuance of options (other than options granted Purchaser pursuant to the Company's Stock Option Plans)terms of this Agreement, warrants, convertible securities or other rights to purchase it being understood that in rendering this opinion such counsel may assume the capital stock, accuracy of the Companyrepresentations of the Purchaser and the Company contained herein and that the offer, sale and delivery of the Series C Notes have been made as contemplated by this Agreement and the Offering Memorandum.
(xiv) The execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities, and the consummation of the transactions contemplated hereby and thereby, will not violate, conflict with or constitute a breach of any of the terms or provisions of, or a default (or an event that with notice or the lapse of time, or both, would constitute a default) under, or require consent under, or result in the imposition of a lien or encumbrance on any assets or properties of the Company or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change an acceleration of indebtedness pursuant to, (whether or not arising in A) the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations Organizational Documents of the Company and or any of its subsidiaries, taken as a whole(B) any bond, and (D) except as stated in the Registration Statement and the Prospectusdebenture, there is not pendingnote, orindenture, mortgage, deed of trust, license or other agreement or instrument, known to the knowledge of the Companysuch counsel after reasonable inquiry, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by which any of them or their property is or may be bound, (C) any U.S. law, statute, rule or regulation applicable to the Company, any of the U.S. Subsidiaries or any of their assets or properties, or (D) any judgment, order or decree of any U.S. court or governmental agency or U.S. authority, known to such counsel after reasonable inquiry, having jurisdiction over the Company, any of the U.S. Subsidiaries or their assets or properties, except such conflicts or violations as would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect. No consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any court or governmental agency, authority body or body, or any arbitrator, which might result in any material adverse change administrative agency in the condition United States is required for the execution, delivery and performance of this Agreement or the other Transaction Documents, except (financial or otherwise), business or results of operations of subject to clause (xiii) above) such as have been obtained prior to the Company and its subsidiaries, taken as a whole. 12
date hereof (i) The Purchaser shall have received duly executed lock up agreementsor, in the form provided case of the Registration Rights Agreement, are planned to be obtained or made under the Act, the Trust Indenture Act and state securities or Blue Sky laws and regulations or such as may be required by the NASD). In rendering the opinions required in this clause (xiv), such counsel may rely on the accuracy of the representations of the Purchaser and the Company by counsel to contained in this Agreement. No consents or waivers from any other person are required for the Purchaserexecution, from each officer delivery and director performance of this Agreement and the other Transaction Documents and the consummation of the Companytransactions contemplated hereby and thereby, other than such consents and waivers as have been obtained, or except where the failure to obtain such consents or waivers would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect.
(jxv) The Company shall have furnished to you To the best knowledge of such counsel, after reasonable inquiry, no action has been taken and counsel for no statute, rule or regulation or order has been enacted, adopted or issued by any U.S. governmental agency that prevents the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing issuance of the Firm Shares on Securities, no injunction, restraining order or order of any nature by a United States federal or state court of competent jurisdiction has been issued that prevents the AMEX. All such opinionsissuance of the Securities and no action, certificatessuit or proceeding is pending against or affecting or threatened against the Company or any of the U.S. Subsidiaries before any court or arbitrator or any governmental body, letters and other documents will be in compliance with the provisions hereof only agency or official which, if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinionsadversely determined, certificates, letters and other documents as you shall reasonably request.would
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder under this Agreement are subject to the accuracysatisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date with the same force and effect as if, assuming, in the case of the Closing Date, that this Agreement had been executed on the Closing Date, made on and as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance respectively. The Company shall have performed or complied with all representations, warranties and agreements of the Company agreements herein contained herein, and required to be performed or complied with in all material respects by it at or prior to the performance by the Company of its obligations hereunder and to the following additional conditions:Closing Date.
(ab) The Prospectus Offering Memorandum shall have been filed with printed and copies distributed to the Commission in accordance with Purchaser not later than 10:00 a.m., New York City time, on the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such later date and time as to which the Purchaser may agree, and no stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of Series C Notes in any part thereof jurisdiction referred to in Section 4(e) shall have been issued and no proceedings proceeding for that purpose shall have been instituted commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of any of the Series C Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company, threatened against the Company or any Subsidiary before any court or arbitrator or any governmental body, agency or official that, if adversely determined, (i) would prohibit, interfere with or adversely affect the Purchaserissuance of the Series C Notes, shall (ii) would reasonably be contemplated by expected to have a Material Adverse Effect or (iii) would in any manner draw into question the Commission.
(b) The Purchaser shall not have advised validity of this Agreement, the Company that Note Indenture, the Series C Notes or the Registration Statement or Rights Agreement; and no stop order preventing the Prospectususe of the Offering Memorandum, or any amendment thereof or supplement thereto, contains an untrue statement or any order asserting that any of fact which, in your opinion, the transactions contemplated by this Agreement is material, or omits subject to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingregistration requirements of the Act shall have been issued.
(cd) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement Offering Memorandum and the Prospectusother than as described or reflected therein, the Company (i) there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or the long-term debt, or material increase in the short-term debt (other than accounts payable incurred in the ordinary course of business), of the Company or any of the Subsidiaries from that set forth in, or contemplated by, the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of the Subsidiaries on any class of its capital stock other than the Series C Preferred Purchase, and (iii) neither the Company nor any of the Subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, that are material, individually or entered into any material transactionsin the aggregate, to the Company and the Subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet included in the Offering Memorandum (other than accounts payable incurred in the ordinary course of business) or declared or paid any dividends or made any distribution elsewhere in the Offering Memorandum. Since the date hereof and since the dates as of any kind with respect to its capital stock; and which information is given in the Offering Memorandum, there shall not have been any change in Material Adverse Change.
(e) The Purchaser shall have received certificates, dated the capital stockClosing Date, signed by (i) the President or any material change in the short-term Vice President and (ii) a principal financial or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock accounting officer of the Company or any material adverse change or any development involving a prospective material adverse change confirming, as of the Closing Date, the matters set forth in paragraphs (whether or not arising in the ordinary course of businessa), in the general affairs, condition (financial or otherwiseb), business, key personnel, property, net worth or results (c) and (d) of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectusthis Section 7.
(df) You The Purchaser shall have received on the Closing Date an opinion substantially in the form previously agreed upon(satisfactory to Purchaser and its counsel), dated the Closing Date, of SmithSteel Hector & Davis LLP, Stratton, Wise, Hehe▇ & ▇ren▇▇▇, ▇▇unsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morg▇▇, ▇▇▇▇▇ & ▇ockand ▇▇▇ ▇▇▇, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arth▇▇ bsi▇▇▇e▇▇▇▇ ▇▇▇, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Companyes, to the effect that:
(i) The representations Company and warranties each of the Company Subsidiaries has been duly organized and is validly existing as a corporation in this Agreement are true good standing under the laws of its respective jurisdiction of incorporation, has all requisite corporate power and correctauthority to own, in all material respects, lease and operate its properties and to conduct its business as if made at it is currently being conducted and as of such Closing Datedescribed or reflected in the Offering Memorandum, and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction in which, to such counsel's knowledge, the Company has complied with all ownership, leasing and operating of its property and the agreements and satisfied all conduct of its business requires such qualification, except where the conditions on its part failure to be performed or satisfied at or prior to such Closing Date;so qualified would not have a Material Adverse Effect.
(ii) No stop order To such counsel's knowledge, the entities listed on Schedule I hereto are the only Subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock or other order suspending the effectiveness securities evidencing equity ownership of such Subsidiaries of the Registration Statement Company are owned, directly or any amendment thereof indirectly, by the Company or the qualification of the Firm Shares for offering through one or sale has been issuedmore subsidiaries, and no proceeding for that purpose has such shares of capital stock or securities have been instituted orduly authorized and validly issued and are fully paid and non-assessable, and to the best of their such counsel's knowledge, is contemplated by the Commission were not issued in violation of any preemptive or similar rights, free and clear of any state security interest, claim, lien or regulatory body; andencumbrance. To such counsel's knowledge, there are no outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or instruments convertible into or exchangeable for, any such shares of capital stock or other equity interest of such Subsidiaries.
(iii) The signers of said certificate have carefully examined Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Notes, the Note Indenture and the Registration Statement Rights Agreement and to consummate the Prospectustransactions contemplated hereby or thereby, including, without limitation, the corporate power and any amendments authority to issue, sell and deliver the Notes as provided herein.
(iv) The Company has duly and validly authorized, executed and delivered this Agreement.
(v) The Company has duly and validly authorized, executed and delivered the Note Indenture and (assuming the due authorization, execution and delivery thereof by the Trustee) the Note Indenture is the legally valid agreement and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance (including the Uniform Fraudulent Transfers Act as adopted in Florida) or supplements theretoother laws affecting creditors' rights and remedies generally, (ii) as to general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), regardless of whether enforcement is sought in a proceeding at law or in equity, and (Aiii) to the extent that a waiver of rights under any usury laws may be unenforceable. The Note Indenture conforms in all material respects to the description thereof in the Offering Memorandum.
(vi) The Series C Notes have been duly and validly authorized for issuance and sale to the Purchaser by the Company pursuant to this Agreement and, when executed, issued and authenticated in accordance with the terms of the Note Indenture and delivered against payment therefor in accordance with the terms hereof, will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Note Indenture, except (i) as such documents contain enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance (including the Uniform Fraudulent Transfers Act as adopted in Florida) or other laws affecting creditors' rights and remedies generally, (ii) as to general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), regardless of whether enforcement is sought in a proceeding at law or in equity, and (iii) to the extent that a waiver of rights under any usury laws may be unenforceable. The Series C Notes, when executed, issued, authenticated and delivered in accordance with the terms of the Note Indenture, will conform in all statements material respects to the description thereof in the Offering Memorandum.
(vii) The Series D Notes have been duly and information required to be included thereinvalidly authorized for issuance by the Company and, when executed, issued, authenticated and delivered in accordance with the terms of the Note Indenture, the Registration StatementRights Agreement and the Exchange Offer, will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Note Indenture, except (i) as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance (including the Uniform Fraudulent Transfers Act as adopted in Florida) or other laws affecting creditors' rights and remedies generally, (ii) as to general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), regardless of whether enforcement is sought in a proceeding at law or in equity, and (iii) to the extent that a waiver of rights under any usury laws may be unenforceable.
(viii) The Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by the Company, will be the legally valid and binding agreement and obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance (including the Uniform Fraudulent Transfers Act as adopted in Florida) or other laws affecting creditors' rights and remedies generally, (ii) as to general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), regardless of whether enforcement is sought in a proceeding at law or in equity, (iii) except as any rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations, and (iv) except as enforcement of any provisions requiring the payment of liquidated damages may be limited by applicable law or public policy. The Registration Rights Agreement, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(ix) When the Series C Notes are issued and delivered pursuant to this Agreement, none of the Series C Notes will be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company or any amendment thereofSubsidiary that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(x) No registration under the Act of any of the Series C Notes is required for the sale of the Series C Notes to the Purchaser as contemplated hereby or for the Exempt Resales assuming (i) that each of the Eligible Purchasers is a QIB or a non-U.S. person the Purchaser reasonably believes is outside the United States and to whom offers and sales of the Series C Notes may be made in reliance upon Regulation S and (ii) the accuracy of the Purchaser's representations contained herein.
(xi) To such counsel's knowledge, does not contain neither the Company nor any untrue statement of the Subsidiaries (a) is in violation of its respective charter or bylaws, (b) is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other loan agreement, indenture, mortgage or deed of trust or any other agreement that is material to the Company and known to such counsel to which it is a material fact party or omit by which it is bound or to state which any material fact required of its properties is subject or (c) is in violation of any law, statute, rule, regulation, judgment or court decree, known to be stated therein such counsel, applicable to the Company 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 thereinsubsidiaries, in light the case of the circumstances under which they were madeclause (b) or (c), not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended other than such violation or supplemented prospectus which default that has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement had and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has will not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind have a Material Adverse Effect; provided however that no opinion need be expressed with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Planspurchase of fragrance products from Diverted Sources. To such counsel's knowledge, there exists no condition that, with notice, the passage of time or otherwise, would constitute such default under any such document or instrument; provided however that no opinion need be expressed with respect to the Company's purchase of fragrance products from Diverted Sources.
(xii) The execution, delivery and performance by the Company of this Agreement and the other Operative Documents, the issuance and sale of the Notes, and the consummation of the transactions contemplated hereby and thereby will not violate, conflict with or constitute a breach of any of the terms or provisions of, or a default under (or an event that with notice or the lapse of time, or both, would constitute a default), warrantsor require consent under, convertible securities or other rights to purchase result in the capital stock, imposition of a lien or encumbrance on any properties of the Company, Company or any of its subsidiariesthe Subsidiaries, or any material adverse change an acceleration of indebtedness pursuant to, (i) the charter or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations bylaws of the Company and its subsidiariesor any of the Subsidiaries, taken as a whole(ii) any bond, and (D) except as stated in the Registration Statement and the Prospectusdebenture, there note or any other evidence of indebtedness or any other loan agreement, indenture, mortgage or deed of trust or any other agreement that is not pending, or, material to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding Company and known to such counsel to which the Company or any of its subsidiaries the Subsidiaries is a party before or by which any of them or their property is or may be bound, (iii) any statute, rule or regulation applicable to the Company, any of the Subsidiaries or their assets or properties; provided however that no opinion need be expressed with respect to applicable state or foreign securities or Blue Sky laws, or (iv) any judgment, order or decree known to such counsel of any court or governmental agency or authority having jurisdiction over the Company, any of the Subsidiaries or their assets or properties. Subject to the assumptions set forth in clauses (i) and (ii) of Section 7(f)(x), no consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any court or governmental agency, authority body or bodyadministrative agency is required for the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated hereby and thereby, except such as have been obtained and made (or, in the case of the Registration Rights Agreement and the transactions contemplated thereby and by the Note Indenture, will be obtained and made under the Act and the Trust Indenture Act) or such as may be required by NASD or under state securities or Blue Sky laws and regulations or under the securities laws of non-U.S. jurisdictions. No consents or waivers from any other person are required under any bond, debenture, note or any arbitratorother evidence of indebtedness or any other loan agreement, which might result in indenture, mortgage or deed of trust or any other agreement that is material adverse change in the condition (financial or otherwise), business or results of operations of to the Company and its subsidiariesknown to such counsel for the execution, taken delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated hereby and thereby, other than such consents and waivers as a whole. 12
have been obtained (i) The Purchaser shall have received duly executed lock up agreementsor, in the form provided to the Company by counsel to the Purchaser, from each officer and director case of the CompanyRegistration Rights Agreement and the transactions contemplated thereby and by the Note Indenture, are required to be obtained).
(jxiii) The Company shall have furnished to you To the knowledge of such counsel, no action has been taken and counsel for no statute, rule or regulation or order has been enacted, adopted or issued by any governmental agency that prevents the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing issuance of the Firm Shares on Notes; to the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies knowledge of such opinionscounsel, certificates, letters and other documents as you shall reasonably request.no injunction,
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