Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions: (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii). (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect. (d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects. (e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent. (f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent. (g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form. (h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. (i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge: (i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect. (ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with. (iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission. (v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect. (j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. (k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent. (l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities. (m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 2 contracts
Sources: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, DLA P▇▇▇▇ ▇▇▇▇▇▇▇ & G▇▇▇ ▇▇▇▇▇ US LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C hereto.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property D▇▇▇▇▇ G▇▇▇▇▇▇ PLLC, as special counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit D hereto.
(g) The Placement Agent shall have received a negative assurance letterOn the date hereof, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement AgentAgent and the Accountants, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) that as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed on behalf of the Company by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(ji) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; , as provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subjectSections 3(b) and 3(y) above.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
in Section 3(nn) and (moo) Units representing an aggregate purchase price hereof substantially in the form of at least $5 million shall have been issued Exhibits A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Sources: Placement Agency Agreement (Aastrom Biosciences Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received (i) an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opiniona letter, dated as of the Closing Date, of intellectual property counsel to the Company, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(hf) At the Closing DateClosing, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) 2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) 3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(j) The Securities shall be qualified for sale, if required, in such states as 5. No order suspending the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service effectiveness of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectusqualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, as or threatened, to the accuracy at Company's knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Closing Date Commission).
6. The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the representations and warranties staff of the Commission or such authorities.
(g) At the Closing, the Company as shall furnish to the performance Placement Agent a certificate, dated the date of its delivery, signed by the Company of its obligations hereunder, or as to the fulfillment Secretary of the conditions concurrent Company, in form and precedent substance reasonably satisfactory to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The ---------------------------------------------------- obligations of the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Placement Agent not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Placement Agent and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(bc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Securities to Investors at the public offering price.
(cd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any Selling Stockholder, the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effectmaterially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company.
(de) Each of the representations and warranties of the Company and each of the Selling Stockholders contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and each of the Selling Stockholders, and all conditions herein contained to be fulfilled or complied with by the Company and each of the Selling Stockholders at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing DateDate (or such other date as may be set forth in a representation or warranty), of intellectual property ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A. as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letteran opinion, dated as of the Closing DateDate (or such other date as may be set forth in a representation or warranty), of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., as counsel to the Selling Stockholders, in form and substance reasonably satisfactory to the Placement Agent, in customary form.
(h) At Concurrently with the Closing Dateexecution and delivery of this Agreement, each or, if the Company elects to rely on Rule 430A, on the date of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇the Prospectus, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC the Company's accountants (the "Accountants") shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “the "Comfort Letter”"), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Comfort Letter, that nothing has come to their attention during the period from the date of the Comfort Letter referred to in the prior sentence to a date (specified in the Bring-Down Letter) not more than five days prior to the Closing Date which would require any change in the Comfort Letter if it were required to be dated and delivered at the Closing Date.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that to each of such person's knowledge:
(1) Each signer of such certificate has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) the Prospectus and (A) As as of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii2) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii3) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv4) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v5) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(j) The Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price in Section 3 hereof substantially in the form of at least $5 million shall have been issued Attachments A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Sources: Placement Agency Agreement (SFBC International Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WomblePaul, CarlyleHastings, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of On the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ig) At the Closing DateClosing, there the Company shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject trading on the Nasdaq Global Market upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit C hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with Closing Date.
(n) The Placement Agent shall have received executed copies of the OfferingPlacement Agent Warrant.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Placement Agent not later than 5:00 p.m., California time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Placement Agent and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or or, to the Company’s knowledge, threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission)authority, (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(bc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the business, properties, financial condition or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(cd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation if determined adversely to the Company could materially and adversely affect the business, properties, properties, financial condition or proceeding is reasonably expected by management to have a Material Adverse Effectresults of operations of the Company.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date in all material respects at the Closing Daterespects, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agentwith.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property ▇▇▇▇▇▇ Godward LLP, as special counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letterConcurrently with the execution and delivery of this Agreement, dated as of and at the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”)delivery, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) Each signer of such certificate has carefully examined the Registration Statement and the Prospectus and (A) As as of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants (not waived by the Placement Agent) required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the business, properties, financial condition or results of operations of the Company, except as set forth in the Prospectus.
(jvi) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending, or to such signer’s knowledge, threatened or contemplated by any securities or other governmental authority.
(i) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved included in a notification to be duly authorized for listing, subject to issuance, quotation on NYSE Amex Equitiesthe NNM.
(mk) Units representing an aggregate purchase price of at least $5 million The NASD shall have been issued confirmed that it has not raised any objection with respect to the fairness and sold under reasonableness of the Registration Statement in connection with the Offeringplacement agency terms and arrangements.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(ia) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (ivd) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Final Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(bii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, (ia) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Disclosure Package and the Final Prospectus and (iib) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Disclosure Package and the Final Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Registration Statement Disclosure Package and the Final Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is proceeding, in the reasonable judgment of the Placement Agent, would reasonably be expected by management to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects at the Closing Datefor those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of letter from the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are it is an independent public accountants with respect to the Company accountant within the meaning of the Act and the Rules and Regulations; (ii) is in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects compliance with the applicable accounting requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Act Commission, and stating, as of the Rules and Regulations; date of such letter (iii) on or, with respect to matters involving changes or developments since the basis respective dates as of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail which specified financial information is given in the Comfort LetterDisclosure Package, a reading as of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not prior to the date hereof or more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (Asuch letter), there were any decreases in revenues or the total or per share amounts conclusions and findings of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, said firm with respect to certain amounts, percentages and the financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished matters covered by its letter delivered to the Placement Agent a certificateconcurrently with the execution of this Agreement, dated and the date of its delivery, signed by each effect of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required letter so to be stated therein or necessary delivered on such Closing Date shall be to confirm the conclusions and findings set forth in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectsuch prior letter.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jvi) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, trading on NYSE Amex Equitiesthe OTC Bulletin Board.
(mvii) Units representing an aggregate purchase price On or after the Applicable Time there shall not have occurred any of at least $5 million shall have been issued and sold under the Registration Statement following: (a) a suspension or material limitation in connection trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or the Nasdaq Stock Market LLC; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (d) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (c) or (d) in the judgment of the Placement Agent makes it impracticable to proceed with the Offeringoffering or the delivery of the Shares being delivered at the Closing Date on the terms and in the manner contemplated in the Final Prospectus.
Appears in 1 contract
Sources: Placement Agency Agreement (Blue Water Global Group, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are shall be subject to the following conditions:
(i) No stop order suspending the effectiveness accuracy of the Registration Statement shall have been issued, representations and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information warranties on the part of the staff Company set forth in Section 2 hereof as of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement and as of the Closing Date as though then made and the accuracy of the statements of the Company made in any certificates pursuant to the Registration Statementprovisions hereof, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent timely performance by the Company of its covenants and the Placement Agent did not object thereto in good faith on a timely basisother obligations hereunder, and to each of the following additional conditions:
(a) On or prior to the date of the Subscription Agreements, the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as the date of the Closing Datedelivery thereof, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially in the form of Exhibit B-1 hereto.
(b) On or prior to the date of the Subscription Agreements, as counsel the Placement Agent shall have received a letter, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto.
(c) 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 Placement Agent, in customary formshall be contemplated by the Commission.
(hd) At Subsequent to the execution of the Subscription Agreements, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with completion of the sale of and payment for by the Purchasers of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) 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 the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the sale of and payment by the Purchasers for the Securities.
(e) The Placement Agent shall have received an opinion, dated the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, LLC shall have furnished counsel for the Company, to the Placement Agent effect that:
(i) Based on certificates from public officials, the Company is qualified to do business in California;
(ii) Based solely on a lettercertificate of an officer of the Company as to factual matters and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), dated the Company is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statement;
(iii) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Subscription Agreements and the application of the proceeds as described in the General Disclosure Package and in the Prospectus under the caption “Use of Proceeds,” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(iv) The execution and delivery of the this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements; or
(B) violate any federal or New York statute, rule or regulation applicable to the Company; or
(C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or made;
(v) The Registration Statements have become effective under the Securities Act. Based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, has been issued under the Securities Act and no proceedings therefor have been initiated or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act;
(vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its delivery (eachdate, a “Comfort Letter”), addressed appeared on their face to be appropriately responsive in all material respects to the Placement Agent requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in form each Registration Statement and substance satisfactory the Prospectus are correct and complete;
(vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed;
(viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects;
(ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, confirming such counsel shall advise the Placement Agent that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing no facts came to their attention that caused them to believe that: :
(A) as of a specified date not more than three days prior to the Registration Statements, on the date of the Comfort LetterProspectus, there have been any changes in including the capital stock information deemed to be a part of the Company or any increase in applicable Registration Statement pursuant to Rule 430B under the long-term debt of Securities Act (together with the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (Aincorporated documents at that time), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting contained an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and misleading;
(yB) neither the Prospectus nor Statutory Prospectus, as of the Pricing Disclosure Materials contains any Applicable Time (together with the incorporated documents at that date), when taken together with the pricing information listed in Annex A to such letter, contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading; or
(BC) no event has occurred the Prospectus, as of its date or as of the date hereof, (together with the incorporated documents at that those dates), contained or contains an untrue statement of a result of which it is material fact or omitted or omits to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein therein, in the light of the circumstances under which they were made, not untrue misleading; it being understood that such counsel need not express a belief with respect to the financial statements, schedules, or misleading other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in any material respectAnnex A to such counsel’s letter, the Prospectus, or the Incorporated Documents.
(f) The Placement Agent shall have received an opinion, dated the Closing Date, of Holland & ▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) Each of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate;
(iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects;
(vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the sale of the shares described in (iii) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements;
(vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by the Company;
(viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and
(ix) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants will not result in a breach or violation of any statute, rule or regulation of the State of Colorado, except that no opinion need be expressed as to securities registration requirements or as to any statute, rule or regulation that applies as a result of the properties of the Company or its subsidiaries or the nature of the business as conducted by the Company or its subsidiaries.
(g) The Placement Agent shall have received from Proskauer Rose LLP, counsel for the Placement Agent, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statements, the General Disclosure Package, the Prospectus and other related matters as the Placement Agent may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Placement Agent shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, that:
(i) the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in correct;
(ii) the Company has complied with all material respects.agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.;
(viv) Subsequent subsequent to the date of the most recent financial statements in the ProspectusGeneral Disclosure Package, there has been no Material Adverse Effectmaterial adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate; and
(v) such other information as the Placement Agent may reasonably request.
(i) The Placement Agent shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely requestshall have received a letter, and each such qualification shall be in effect and not subject to any stop order or other proceeding on dated the Closing Date; provided , of KPMG LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in no event shall the Company such subsection will be obligated to qualify to do business in any jurisdiction where it is a date not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.more than three d
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did does not object thereto in good faith on a timely basisfaith, and (v) the Placement Agent shall have received certificates of the Companycertificates, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the of their information and belief), to the effect of clauses (i), (ii) and (iii)) of this paragraph.
(bc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth described in or contemplated by the Registration Statement and the Prospectus Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth described in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery offering of the Units to Investors at the public offering priceShares.
(cd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding is reasonably expected by management to an unfavorable ruling, decision or finding would, in the judgment of the Placement Agent, have a Material Adverse EffectEffect or if, in the judgment of the Placement Agent, any such development makes it impracticable or inadvisable to consummate the offering of the Shares.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date, as if made on such date, Date and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agentwith.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property satisfactory in form and substance to the Placement Agent and counsel for the Placement Agent, from G▇▇▇|C▇▇▇▇▇▇▇▇▇▇, counsel to the Company, with respect to the following matters:
(i) Each of the Company and Conductus is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; has full corporate power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus; and is duly qualified to conduct business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such qualification necessary and where the failure to be qualified would have a material and adverse effect on the business or financial condition of the Company.
(ii) The Shares to be sold by the Company in the Offering have been duly authorized and, when issued and paid for as contemplated by this Agreement and the respective Purchase Agreements, will be validly issued, fully paid and nonassessable, and are not subject to preemptive or similar rights pursuant to the Certificate or Bylaws or by statute or any agreement filed as an exhibit to the Documents Incorporated by Reference, or to our knowledge, any other agreement by which the Company is bound.
(iii) All of the outstanding shares of capital stock of Conductus have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel’s knowledge, are owned by the Company free and clear of all claims, liens, charges and encumbrances. To such counsel’s knowledge, there are no securities outstanding that are convertible into or exercisable or exchangeable for capital stock of Conductus.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement and the Prospectus in the column titled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements, employee benefit plans or the exercise of convertible securities, options or warrants referred to in the Prospectus). To such counsel’s knowledge, except as disclosed in or specifically contemplated by the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company. The description of the capital stock of the Company incorporated by reference in the Registration Statement and the Prospectus conforms in all material respects to the terms thereof.
(v) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its Subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement or the Prospectus but are not so described.
(vi) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated on its part under this Agreement or the respective Purchase Agreements, except such as have been obtained or made under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the offering by the Placement Agent of the Shares.
(vii) The Company has full corporate power and authority to enter into this Agreement and the Purchase Agreements. This Agreement and each Purchase Agreement has been duly authorized, executed and delivered by the Company.
(viii) The execution and delivery of this Agreement and the Purchase Agreements, the compliance by the Company with all the respective terms hereof and thereof the consummation of the transactions contemplated hereby and thereby (a) do not contravene any provision of applicable laws the Certificate of Incorporation or By-Laws of the Company or of Conductus, or to such counsel’s knowledge, any provision of any applicable federal or state law, rule or regulation (other than state securities or Blue Sky laws or regulations to which we give no opinion), and (b) to such counsel’s knowledge, will not (i) result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or Conductus pursuant to the terms and provisions of; (ii) conflict with, result in a breach or violation of any of the terms or provisions of; (iii)constitute a default under, or give any party a right to terminate any of its obligations under; or (iv) result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument which is listed as an exhibit to the Documents Incorporated by Reference or, to such counsel’s knowledge, any other agreement, document or instrument, to which the Company or Conductus is a party or by which the Company and Conductus, or any of their respective properties is bound or affected, or (c) violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) any statue, rule or regulation of any court or other governmental agency or body, applicable to the business or properties of the Company or Conductus.
(ix) To such counsel’s knowledge, (i) there is no document or contract of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed or incorporated by reference as required, and (ii) each description of such contracts and documents that is contained or incorporated by reference in the Registration Statement and Prospectus fairly presents in all material respects the information required under the Act and the Rules and Regulations.
(x) The statements on page 17 of the Prospectus under the caption “Description of Common and Preferred Stock” and the statements under the caption “Risk Factors – Anti-takeover provisions in our charter documents and under California law could prevent or delay a change in control, which could negatively impact the value of our common stock by discouraging a favorable merger or acquisition of us” in the Prospectus, insofar as the statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present, in all material respects, the information called for with respect to such documents and matters.
(xi) The Company is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(xii) The Firm Shares and Option Shares to be sold by the Company have been duly authorized for listing on the Nasdaq National Market, subject to official notice of issuance.
(xiii) To such counsel’s knowledge, except as stated in the Prospectus or in this Agreement, no holder of securities of the Company has rights, which have not been waived or satisfied, to require the Company to register with the Commission shares of Common Stock or other securities, as part of the transactions contemplated by this Agreement.
(xiv) The Registration Statement has become effective under the Act, and to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending, threatened or contemplated.
(xv) The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (other than the financial statements, schedules and other financial and statistical data contained in or incorporated by reference into the Registration Statement or the Prospectus, as to which such counsel need express no opinion).
(xvi) Such counsel has participated in the preparation of the Registration Statement and Prospectus and has no reason to believe that, as of the Effective Date the Registration Statement, or any amendment or supplement thereto, (other than the financial statements, schedules and other financial data contained therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, or any amendment or supplement thereto, as of its date and the Closing Date and, if later, the Option Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained therein, as to which such counsel need express no opinion).
(xvii) The Documents Incorporated by Reference (other than the financial statements, schedules and other financial and statistical data contained therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations. In rendering such opinion, such counsel may rely upon as to matters of local law on opinions of counsel satisfactory in form and substance reasonably satisfactory to the Placement Agent and counsel for the Placement Agent, provided that the opinion of counsel to the Company shall state that they are doing so, that they have no reason to believe that they and the Placement Agent are not entitled to rely on such opinions and that copies of such opinions are to be attached to the opinion. In addition, such counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement and Prospectus, such counsel has no reason to believe that, as of the Effective Date the Registration Statement, or any amendment thereto, (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, or any amendment or supplement thereto, as of its date and the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no opinion).
(g) The Placement Agent shall have received a negative assurance letteran opinion, dated as of the Closing Date, of from G▇▇▇▇▇▇▇ C▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇Freidenrich LLP, as counsel to the Placement Agent, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in customary formall respects to the Placement Agent.
(h) At Concurrently with the Closing Dateexecution and delivery of this Agreement, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”)delivery, addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within and its Subsidiaries as required by the meaning of Act and the Exchange Act and the Rules and Regulations; (ii) in their opinion, the financial statements Regulations and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records statistical and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.numerical information containe
Appears in 1 contract
Sources: Placement Agency Agreement (Superconductor Technologies Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to place the Offered Securities and consummate the transactions contemplated hereby on the Closing are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), ; (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission), ; (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus and (ii) the Company shall not have sustained any material loss or material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing DateDate of Weycer, of WombleKaplan, Carlyle, Pulaski & Z▇▇▇▇, P.C., C▇▇▇▇▇▇▇ & ▇▇▇▇▇ & Klegerman PC, and C▇▇▇▇▇▇ D▇▇▇ & P▇▇▇▇▇▇ Limited, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C-1, Exhibit C-2 and Exhibit C-3, respectively.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, as counsel to the CompanyPlacement Agent, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letterOn the date hereof, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and addressing such matters as are customary for the type of transactions contemplated by this Agreement and the Prospectus: (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Materials and the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that : (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinionstating, as of the financial statements and any supplementary date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information included is given in the Registration Statement Pricing Disclosure Materials and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries as of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Bring-Down Letter), nothing came to their attention that caused them to believe that: (A) as the conclusions and findings of a specified date not more than three days prior such firm with respect to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or financial information and other items specified matters covered by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (Biii) for confirming in all material respects the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year conclusions and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described findings set forth in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (1. ( A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Units and the Warrant Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WombleProskauer Rose LLP, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Original Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Original Letter to a date not more than five days prior to the date of the Comfort Original Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Original Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Original Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Original Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jh) The Securities Units and the Warrant Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Sources: Placement Agency Agreement (Emisphere Technologies Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent Agents hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent Agents and the Placement Agent Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, Change whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and or the Prospectus Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and or the Prospectus, if in the judgment of the Placement Agent Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent Agents shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇Dodge LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentAgents, with respect to the matters set forth in Exhibit A hereto.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent Agents and in form and substance reasonably satisfactory to the Placement AgentAgents, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Accountants shall have furnished to the Company within Placement Agents a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent Agents a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent Agents to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent Agents may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement AgentAgents.
(lj) The Shares and Warrant Shares Placement Agents shall have been approved for listingreceived executed “lock-up” agreements, subject each substantially in the form of Exhibit B hereto, from the executive officers and directors of the Company relating to issuancesales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be full force and effect on NYSE Amex Equitiesthe Closing Date.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof) or the Prospectus (exclusive of any supplement thereto), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof) or the ProspectusProspectus (exclusive of any supplement thereto), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinionfrom each of (i) ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, dated as of US counsel for the Closing DateCompany, of Womble(ii) ▇.▇. ▇▇▇▇▇▇ & Company, CarlyleCayman Islands counsel for the Company, and (iii) ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as Bolivian counsel for the Company, such counsel's written opinion addressed to the CompanyPlacement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement AgentAgent substantially as set forth in Exhibits C-1, C-2 and C-3 attached hereto, respectively.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort the "Original Letter”"), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters. At the Closing Date, the Accountants shall have furnished to the Company within Placement Agent a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s 's knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lj) The Shares and Warrant Shares shall have been approved for listing, subject to official notice of issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price the AMEX, and satisfactory evidence of at least $5 million such actions shall have been issued and sold under provided to the Registration Statement in connection with the OfferingPlacement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of [▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.]
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved be eligible for listingtrading, subject to issuancewhen issued, on NYSE Amex Equitiesthe OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(hg) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(ji) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex EquitiesThe Nasdaq Capital Market.
(ml) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are to offer and deliver the Units on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(ia) No The Registration Statement shall have become effective, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or threatened you, shall be contemplated by any securities or other governmental authority (including, without limitationthe Commission. If the Company has elected to rely upon Rule 430A, the Commissioninformation concerning the offering price of the Units and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Placement Agent of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Units shall have been qualified for sale under the blue sky laws of such states as shall have been agreed to by the Placement Agent and the Company.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Units hereunder, the validity and form of the certificates representing the Units, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package, and the Prospectus (except financial statements) shall have been approved by counsel for the Placement Agent exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto contains an untrue statement of fact, which, in the opinion of counsel for the Placement Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries, whether or not arising in the ordinary course of business, which, in the judgment of the Placement Agent, makes it impractical or inadvisable to proceed with the Offering as contemplated hereby.
(f) There shall have been furnished to you, as Placement Agent, on the Closing Date, except as otherwise expressly provided below:
(i) An opinion of Brown, Winick, Graves, Gross, B▇▇▇▇▇▇▇▇▇▇ and S▇▇▇▇▇▇▇▇▇, P.L.C., counsel for the Company, addressed to the Placement Agent and dated the Closing Date, as set forth on Exhibit D.
(ii) Such opinion or opinions of M▇▇▇▇▇▇ ▇▇▇▇ & Friedrich LLP, counsel for the Placement Agent, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Units, the Registration Statement, the Disclosure Package and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the principal financial officer of the Company, dated the Closing Date, to the effect that:
(1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(2) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement, or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement or has been issued; and to the qualification or registration best knowledge of the Securities respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority 1933 Act; and
(including, without limitation, 3) subsequent to the Commission), (iii) any request for additional information on the part date of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given most recent financial statements included in the Registration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (iA) there shall none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (B) there has not been any change that has had or would have a material adverse effect upon the Company and its subsidiaries taken as a whole or any material change in each case other than their short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses to be set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering pricesaid certificate.
(civ) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at On the Closing Date, there shall be delivered to you a letter addressed to you, as if made on such datePlacement Agent, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, from C▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇Associates, as counsel to the CompanyPLLP, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionindependent registered public accounting firm, dated as of the Closing Date, to the effect set forth in Exhibit E. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of intellectual property counsel the Placement Agent to proceed with the offering or purchase of the Units as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, verifying the truth and accuracy of ▇▇▇such statistical or financial figures regarding the Company included in the Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (iv) above, such verification to include the provision of documentary evidence supporting any such statistical or financial figure.
(vi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to M▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇Friedrich LLP, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information approval shall not be unreasonably withheld. The Company shall furnish you with such accountingmanually signed or conformed copies of such opinions, financial certificates, letters and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished documents as you request. If any condition to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such personAgent’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required obligations hereunder to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or satisfied prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of any statement in the Registration Statement you, as Placement Agent, or the ProspectusCompany, as except for the expenses to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance be paid or reimbursed by the Company of its obligations hereunder, or as pursuant to Sections 5 and 7 hereof and except to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agentextent provided in Section 9 hereof.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Sources: Placement Agency Agreement (Amaizing Energy Holding Company, LLC)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or or, to the knowledge of the Company, threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)writing.
(b) Since the respective dates July 31, 2005, except as of which information is given set forth or contemplated in the Registration Statement and the Prospectus, (i) neither the Company nor any Significant Subsidiary has incurred any liabilities or obligations, direct or contingent, that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) there shall has not been any event or development in respect of the business or financial condition of the Company and the Significant Subsidiaries taken as a whole that, individually or in the aggregate, could reasonably be expected to have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The On the Closing date, the Company will furnish to the Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, a letter from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the Company, regarding the statements made by the Company in the Registration Statement and the Prospectus, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Ernst & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Young LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, Ernst & Young LLP shall have furnished to the Company within Placement Agent a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the President and Chief Executive Officer and the Chief Financial Officer of the Company, each in his or her capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the The representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsrespects on and as of the Closing Date, except that if a representation or warranty is made as of a specific date, such representation or warranty is true and correct in all material respects as of such date, and the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings proceeding for that purpose have has been instituted initiated or are contemplated threatened by the Commission.
(v) Subsequent . Except as disclosed to the date of the most recent financial statements in the ProspectusPlacement Agent, there has been no request of the Commission for inclusion of additional information in the Registration Statement, the Prospectus or any Preliminary Prospectus.
(iv) Since July 31, 2005, except as set forth or contemplated in the Prospectus, (A) neither the Company nor any of its Significant Subsidiaries has incurred any liabilities or obligations, direct or contingent, that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (B) there has not been any event or development in respect of the business or condition (financial or other) of the Company and its subsidiaries taken as a whole that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(jv) Since the date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement.
(h) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company Placement Agent shall have furnished or caused to be furnished to the Placement Agent such certificatesreceived executed “lock-up” agreements, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement each substantially in the Registration Statement or form of Exhibit B hereto, from the Prospectus, as to the accuracy at the Closing Date of the representations executive officers and warranties directors of the Company as relating to sales and certain other dispositions of Common Shares or certain other securities, and such lock-up agreements shall be full force and effect on the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement AgentClosing Date.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Sources: Placement Agency Agreement (Fleetwood Enterprises Inc/De/)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(ia) (a)(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened threatened, to the Company’s knowledge, or contemplated by in writing by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether Change or not arising from transactions any development involving a prospective Material Adverse Effect in the ordinary course of business, in each case other than as set forth in properties, management, financial condition or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss results or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment operations of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering priceCompany.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ed) The Placement Agent shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, A▇▇▇ G▇▇▇ S▇▇▇▇▇▇ & H▇▇▇▇ & F▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, matters set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreementExhibit A hereto.
(ie) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in the form attached as Exhibit B-1 hereto, and substance satisfactory to a certificate of its Secretary in the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred form attached as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectExhibit B-2 hereto.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jf) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kg) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably prepared and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection filed with the OfferingCommission a Current Report on Form 8-K including as an exhibit thereto this Agreement.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion(i) opinions, dated as of the Closing Date, of Womble▇▇▇ ▇. ▇▇▇▇▇▇▇, Carlyle▇▇., the Company’s general counsel, and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇& ▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel LLP in form and substance reasonably satisfactory to the Placement Agent, in customary form.
(hf) At On the Closing Datedate hereof, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included or incorporated by reference in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear or are incorporated by reference in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At . On the Closing Date, there the Accountants shall be have furnished to the Placement Agent a “bring down” letter, dated the Closing Date, confirming the statements contained in the Comfort Letter and the updating the procedures specified in the Comfort Letter to a specified date not more than five days prior to the Closing Date.
(g) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject listing on the Nasdaq Global Market upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit B hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with the OfferingClosing Date.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(a) All filings required by Rule 424, Rule 430A, 430B and 430C of the Rules and Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement.
(i) No stop order suspending the effectiveness of the Registration Statement Statements shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement Statements or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statements or the Prospectus Prospectuses shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did does not object thereto in good faith on a timely basisfaith, and (v) the Placement Agent shall have received certificates of the Companycertificates, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii)) of this paragraph.
(bc) Since the respective dates as of which information is given in the Registration Statement and the ProspectusSeptember 30, 2005, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth described in or contemplated by the Registration Statement Statements and the Prospectus Prospectuses, and (ii) neither the Company nor any of its Subsidiaries shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth described in the Registration Statement Statements and the ProspectusProspectuses, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery offering of the Units to Investors at the public offering priceShares.
(cd) Since the respective dates as of which information is given in the Registration Statement Statements and the ProspectusProspectuses, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding is reasonably expected by management to an unfavorable ruling, decision or finding would, in the judgment of the Placement Agent, have a Material Adverse EffectEffect or if, in the judgment of the Placement Agent, any such development makes it impracticable or inadvisable to consummate the offering of the Shares.
(de) Each of the representations and warranties of the Company and the Selling Stockholder contained herein shall be true and correct in all respects (in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date, as if made on such date, Date and all covenants and agreements contained herein contained to be performed on the part of the Company or the Selling Stockholder and all conditions contained herein contained to be fulfilled or complied with by the Company or the Selling Stockholder at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agentwith.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property satisfactory in form and substance to the Placement Agent and counsel for the Placement Agent, from R▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel to the Company, in form and substance reasonably satisfactory with respect to the Placement Agentfollowing matters:
(i) Each of the Company and Rhetech, Inc. is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; has full corporate power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statements and Prospectuses; and is duly licensed or qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such license or qualification necessary and where the failure to be licensed or qualified would have a material and adverse effect on the business or financial condition of the Company.
(ii) All of the shares of capital stock of the Company issued since the Company’s initial public offering have been duly authorized, validly issued and are fully paid and nonassessable, and were not issued in violation of or subject to any preemptive or, to such counsel’s knowledge, similar rights.
(iii) The Shares have been duly authorized and, when issued and paid for as contemplated by this Agreement and the respective Purchase Agreements, will be validly issued, fully paid and nonassessable; and no preemptive or similar rights exist with respect to any of the Shares or the issue and sale thereof.
(iv) All of the outstanding shares of capital stock of Rhetech, Inc. have been duly authorized and validly issued and are fully paid and nonassessable, and owned by the Company free and clear of all claims, liens, charges and encumbrances; to such counsel’s knowledge, there are no securities outstanding that are convertible into or exercisable or exchangeable for capital stock of Rhetech, Inc.
(v) To such counsel’s knowledge, except as disclosed in or specifically contemplated by the Registration Statements, there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company. The description of the capital stock of the Company included in or incorporated by reference in the Registration Statements and the Prospectuses conforms in all material respects to the terms thereof.
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its Subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statements or the Prospectuses but are not so described.
(vii) The Company has full corporate power and authority to enter into this Agreement and the Purchase Agreements. This Agreement and each Purchase Agreement have been duly authorized, executed and delivered by the Company.
(viii) The execution and delivery of this Agreement and the Purchase Agreements, the compliance by the Company with all of the respective terms hereof and thereof and the consummation of the transactions contemplated hereby and thereby (A) do not contravene any provision of the Articles of Incorporation or By-Laws of the Company, (B) to such counsel’s knowledge, will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its Subsidiaries pursuant to the terms and provisions of, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any material indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other material evidence of indebtedness, lease, contract or other agreement, document or instrument known to such counsel to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties is bound or affected, or (C) violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) to such counsel’s knowledge, any statute, rule or regulation of any court or other governmental agency or body, applicable to the business or properties of the Company or any of its Subsidiaries.
(ix) To such counsel’s knowledge, there is no document or contract of a character required to be described in the Registration Statements or the Prospectuses or to be filed as an exhibit to the Registration Statements that is not described or filed or incorporated by reference as required, and each description of such contracts and documents that is contained or incorporated by reference in the Registration Statements and Prospectuses fairly presents in all material respects the information required under the Act and the Rules and Regulations.
(x) The statements under the captions “Description of Securities” and “Legal Proceedings,” and the first sentence of “Risk Factors — Anti-takeover provisions in our charter documents could adversely affect the rights of holders of our common stock,” in the Prospectuses or incorporated by reference therein, insofar as the statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present, in all material respects, such documents or matters of law (provided, however, that such counsel may rely on representations of the Company with respect to the factual matters contained in such statements, and provided further that such counsel shall state that nothing has come to the attention of such counsel that leads them to believe that such representations are not true and correct in all material respects).
(xi) To such counsel’s knowledge, no holder of securities of the Company has rights, which have not been waived or satisfied, to require the Company to register with the Commission shares of Common Stock or other securities, as part of the offering contemplated hereby.
(xii) The Selling Stockholder has full power and authority to enter into this Agreement and the Purchase Agreements. This Agreement and each Purchase Agreement have been duly executed and delivered by the Selling Stockholder.
(xiii) Upon delivery of the Shares and payment therefor by an Investor, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to such Investor.
(g) The Placement Agent shall have received a negative assurance letteran opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ satisfactory in form and substance to the Placement Agent and counsel for the Placement Agent, from M▇▇▇▇▇▇▇ & F▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇LLP, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished counsel to the Placement Agent a letterCompany and the Selling Stockholder, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the following matters:
(i) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company within the meaning of the transactions on its part contemplated under this Agreement or the respective Purchase Agreements, except such as have been obtained or made under the Act and or the Rules and Regulations; Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the offering by the Placement Agent of the Shares.
(ii) in their opinionThe Company is not an “investment company” or an “affiliated person” of, the financial statements and any supplementary financial information included or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(iii) The Registration Statement Statements have become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statements has been issued and examined by them no proceeding for that purpose has been instituted or is pending, threatened or contemplated.
(iv) The Registration Statements and the Prospectuses comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; Regulations (iii) on other than the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail financial statements and schedule contained or incorporated by reference in the Comfort LetterRegistration Statements or the Prospectuses, a reading as to which such counsel need express no opinion).
(v) The documents incorporated by reference in the Prospectuses (other than the financial statements and schedule contained therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the latest available interim financial statements of Exchange Act and the Company, inspections of Exchange Act Rules and Regulations. Such counsel shall also state that (i) such counsel has participated in conferences with the minute books Placement Agent’s representatives and with representatives of the Company since and its accountants concerning the latest audited financial Registration Statements and the Prospectuses and has considered the matters required to be stated therein and the statements included in contained therein, although such counsel has not independently verified the Prospectusaccuracy, inquiries completeness or fairness of officials of the Company responsible for financial such statements, and accounting matters (ii) that based upon and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior subject to the date of the Comfort Letterforegoing, nothing came has come to their the attention of such counsel that caused them leads such counsel to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, that the Registration StatementStatements, and have compared such amountsat the time it became effective, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ymisleading, or that the Prospectuses, at the time they were filed with the Commission pursuant to Rule 424(b) neither under the Prospectus nor Act or as of the Pricing Disclosure Materials contains any Closing Date, contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel is not being requested to and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order not required to make any comment in such statement with respect to the financial statements therein not untrue and other financial information contained in the Registration Statements or misleading in any material respect.Prospectuses)
(iih) Each The Placement Agent shall have received an opinion, dated the Closing Date, from P▇▇▇▇▇▇ Coie LLP, patent counsel to the Company, with respect to certain patent matters, which opinions shall be reasonably satisfactory in all respects to the Placement Agent:
(i) The Placement Agent shall have received an opinion, dated the Closing Date, from each of the representations Hewitsons Solicitors and warranties of C▇▇▇▇▇▇▇ Chance LLP, counsel to the Company contained in this Agreement werewith respect to Semitool Europe Ltd. and Semitool Japan Inc., when originally maderespectively, and arewith respect to certain matters relating to such Subsidiaries, at the time such certificate is delivered, true and correct which opinions shall be reasonably satisfactory in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior respects to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.Placement Agent:
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely requestshall have received an opinion, and each such qualification shall be in effect and not subject to any stop order or other proceeding on dated the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished , from Fenwick & West LLP, counsel to the Placement Agent such certificatesAgent, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as with respect to the accuracy Registration Statements, the Prospectuses and completeness at the Closing Date of any statement this Agreement, which opinion shall be satisfactory in the Registration Statement or the Prospectus, as all respects to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares Concurrently with the execution and Warrant Shares delivery of this Agreement, the Accountants shall have been approved for listingfurnished to the Placement Agent a letter, subject dated the date of its delivery, addressed to issuancethe Placement Agent and in form and substance satisfactory to the Placement Agent and the Accountants, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statements. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price the basis of at least $5 million shall have been issued and sold under the Registration Statement a review in connection accordance with the Offering.procedures set forth in the letter from the Accountants, that nothing has come to their a
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to place the Offered Securities and consummate the transactions contemplated hereby on the Closing are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), ; (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission), ; (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus and (ii) the Company shall not have sustained any material loss or material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C, respectively.
(f) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and addressing such matters as are customary for the type of transactions contemplated by this Agreement and the Prospectus: (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Materials and the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that : (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinionstating, as of the financial statements and any supplementary date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information included is given in the Registration Statement Pricing Disclosure Materials and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries as of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Bring-Down Letter), nothing came to their attention that caused them to believe that: (A) as the conclusions and findings of a specified date not more than three days prior such firm with respect to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or financial information and other items specified matters covered by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (Biii) for confirming in all material respects the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year conclusions and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described findings set forth in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened by any securities or other governmental authority (including, without limitation, the Commission).
(vi) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(vii) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agent as to matters customary to the closing of the transactions of the type contemplated hereby.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that limitations set forth in no event shall the Company be obligated to qualify to do business proviso in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subjectSection 4(g).
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such customary closing certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement Statement, the Pricing Disclosure Materials or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price in Section 3 hereof substantially in the form of at least $5 million shall have been issued Exhibits A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the Prospectusdate of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the ProspectusProspectus (including, in each case, any report incorporated by reference therein on or prior to the date of this Agreement), there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of O’Melveny & ▇▇▇▇▇ LLP, intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C hereto.
(g) The Placement Agent shall have received a negative assurance letterConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement AgentAgent containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters, confirming provided that (i) they are independent public accountants with respect the Placement Agent has made to the Company within Accountants such representations as are required by the meaning of Accountants in order to permit the Act Accountants to prepare and so deliver the Rules and Regulations; (ii) in their opinionOriginal Letter. At the Closing Date, the financial statements and any supplementary financial information included in Accountants shall have furnished to the Registration Statement and examined by them comply as to form in all material respects with Placement Agent a letter, dated the applicable accounting requirements date of the Act and the Rules and Regulations; (iii) its delivery, which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) As of its effective date, the Registration Statement does did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither as of he date of such certificate, the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with, in all material respects.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements disclosed in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(ji) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listingreceived executed “lock-up” agreements, subject each substantially in the form of Exhibit D hereto, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ relating to issuancesales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be in full force and effect on NYSE Amex Equitiesthe Closing Date.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are hereunder, including, but not limited to, to effectuate the Initial Closing and all Subsequent Closings, will be subject to the accuracy of the representations and warranties of the Company herein on the date hereof and each Closing Date (as though made on each Closing Date), to the timely performance by the Company of its obligations hereunder, and to the following conditions:additional conditions precedent: Newbridge Securities Corporation July 8, 2015
(ia) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (ivd) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Final Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)Agent.
(bii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, (ia) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Final Prospectus and (iib) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Final Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is proceeding, in the reasonable judgment of the Placement Agent, would reasonably be expected by management to have a Material Adverse EffectChange.
(div) From the date hereof through and including the Final Closing, there shall not have occurred any of the following: (I) trading in securities generally shall have been suspended on or by the New York Stock Exchange, Nasdaq or the NYSE MKT LLC, (II) trading in any of the securities of the Company shall have been suspended on any exchange, in the over-the-counter market or by the Commission, (III) a general moratorium on commercial banking activities shall have been declared by federal or New York state authorities or a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States, (IV) there shall have occurred any outbreak or material escalation of hostilities or acts of terrorism involving the United States or there shall have been a declaration by the United States or elsewhere of a national emergency or war, (V) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States, if the effect of any such event specified in clause (IV) or (V), in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with the Offering on the terms and in the manner contemplated by this Agreement, the Registration Statement and the Final Prospectus.
(v) At the Initial Closing, the Placement Agent shall have received a letter dated the date hereof (the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and its counsel, from the Auditor (a) confirming that it is an independent public accountant with respect to the Company within the meaning of the Act, and (b) stating, as of the date thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than three days prior to the date thereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to Placement Agent, delivered according to Statement of Auditing Standards No. 72 and Statement of Auditing Standards No. 100 (or successor bulletins), in connection with registered public offerings. Newbridge Securities Corporation July 8, 2015
(vi) At each Subsequent Closing, the Placement Agent shall have received from the Auditor a letter (the “Bring-Down Letter”), dated as of such particular Closing Date, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and its counsel, (a) confirming that it is an independent public accountant with respect to the Company within the meaning of the Act, (b) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than three days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the Comfort Letter, and (c) confirming in all material respects the conclusions and findings set forth in the Comfort Letter.
(vii) The Final Prospectus shall have been filed with the Commission in accordance with the Act and this Agreement.
(viii) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company.
(ix) Subsequent to the date of the latest audited financial statements included in the Registration Statement (a) the Company has not sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Final Prospectus and/or (b) 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 the conversion of convertible indebtedness), or material change in the short-term debt or long-term debt of the Company (other than upon conversion of convertible indebtedness) or any material adverse change, in or affecting the business, assets, general affairs, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth in the Final Prospectus, the effect of which, in any such case described in clause (a) or (b) of this subsection (ix), is, in the reasonable judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Final Prospectus.
(x) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at when made on and as of the Closing Date, as if made and on such datedate (except that (a) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (b) those representations and warranties which are, by their express terms, qualified by materiality or a Material Adverse Effect, shall be true and correct as so qualified), and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.. Newbridge Securities Corporation July 8, 2015
(exi) The Placement Agent Representative shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as LLP, counsel to the Company, such counsel’s written opinion, addressed to the Placement Agent, in customary form.
(h) At Agent and dated as of the particular Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP in form and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC substance reasonably satisfactory to the Placement Agent and its counsel. Such counsel to the Company shall also have furnished to the Placement Agent a letter, dated the date of its delivery written statement (each, a “Comfort LetterNegative Assurances”). The Placement Agreement shall also receive a legal opinion from a law firm who is, and which opinion is in form and substance, reasonably acceptable to the Placment Agent and its legal counsel, addressed to the Placement Agent and dated as of the particular Closing Date regarding, among other related items, the Company’s ownership of its real property and/or leasing of real property, lack of liens and related clouds on title on the Company’s such property, ownership, and rights to use such property to effectuate its proposed business as described in form each Preliminary Prospectus the Final Prospectus, such property having all all permits, consents, licenses and substance satisfactory zoning compliance related items under all local law to effectuate the Company’s proposed business as provided in each Preliminary Prospectus and the Final Prospectus and such other related items that the Placement Agent and its counsel reasonably deem necessary.
(xii) The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement AgentAgent and dated as of each Closing Date, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act chief executive or chief operating officer and the Rules and Regulations; (ii) in their opinion, the chief financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable officer or chief accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books officer of the Company since to the latest audited financial statements included in effect that:
a. each of the Prospectusrepresentations, inquiries of officials warranties and agreements of the Company responsible for financial contained in this Agreement were true and accounting matters correct when originally made and such other inquiries are true and procedures correct as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Companyparticular Closing Date, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared as if made on each such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
date (except that (i) At those representations and warranties that address matters only as of a particular date remain true and correct as of each such date and (ii) those representations and warranties which are, by their express terms, qualified by materiality or a Material Adverse Effect, shall be true and correct as so qualified); and the Company has, in all material respects, complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
b. no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Shares for offering or sale, there nor suspending or preventing the use of the Final Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceedings for that purpose or pursuant to Section 8A under the Act shall be furnished pending or to their knowledge, threatened by the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined Commission or any state or regulatory body;
c. the Registration Statement and that to each of such person’s knowledge:
(i) (A) As amendment thereto, and as of the date of such certificatethis Agreement and as of each Closing Date, (x) the Registration Statement does did not contain include any untrue statement of a material fact or and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, any Issuer Free Writing Prospectus as of its date and (y) neither as of each Closing Date, the Final Prospectus nor and each amendment or supplement thereto, as of the Pricing Disclosure Materials contains respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact or and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under in which they were made, not misleading and (B) misleading; and
d. no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect, and in the case of the Final Prospectus, in the light of the circumstances in which they were made.
(iixiii) Each The Shares shall have been approved for listing on the Nasdaq, subject only to official notice of issuance and adequate distribution. Newbridge Securities Corporation July 8, 2015
(xiv) The Escrow Agent shall have received subscriptions for Shares in at least the representations Minimum Amount and warranties of full payment in immediately avabilable funds for such Shares shall have been deposited into the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsEscrow Account.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kxv) The Company shall have furnished or caused to be furnished to the Placement Agent such certificatesfurther information, in addition to those specifically mentioned herein, certificates or documents as the Placement Agent may shall have reasonably requested.
(xvi) [reserved]
(xvii) The shares of Common Stock shall have been registered as a class under the Exchange Act as a result of the Commission declaring the Company’s Registration Statement on Form 8-A effective.
(xviii) The Company and timely requested its Common Stock, including all of the Shares, shall be DTC eligible.
(xix) The Placement Agent shall have received clearance from FINRA as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement ’s compensation in connection with the Offering.
(xx) The Placement Agent shall have completed all of its due diligence and the results thereof shall be satisfactory to the Placement Agent in its sole discretion.
(xxi) The Placement Agent shall have received all such other items, including, but not limited to, all documents, agreements, certificates, opinions, instruments, and consents, and its legal counsel reasonably requests. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof) or the Prospectus (exclusive of any supplement thereto), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof) or the ProspectusProspectus (exclusive of any supplement thereto), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinion, dated as from each of the Closing Date, of Womble, Carlyle, ▇▇▇▇(i) ▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC US counsel for the Company, and (ii) ▇.▇. ▇▇▇▇▇▇ & Company, Cayman Islands counsel for the Company, such counsel's written opinion addressed to the Placement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent substantially as set forth in Exhibits A-1 and A-2 attached hereto, respectively.
(f) The Accountants have previously furnished to the Placement Agent a letter, dated January 27, 2004 (the "Original Letter"), addressed to the Placement Agent, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (eachdelivery, a “Comfort Letter”)which shall confirm, addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s 's knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lj) The Shares and Warrant Shares shall have been approved for listing, subject to official notice of issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price the AMEX, and satisfactory evidence of at least $5 million such actions shall have been issued and sold under provided to the Registration Statement in connection with the OfferingPlacement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Securities, the Agent Warrants or the Agent Warrant Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing Date no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, (i) there shall not have been occurred no event, change, development, circumstance or occurrence that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the General Disclosure Package and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the General Disclosure Package and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Notes and the Warrants to the Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received (i) an opinion, dated as of the Closing Date, of WombleHolland & Knight LLP, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opiniona negative assurance letter, dated as of the Closing Date, of intellectual property counsel to the Company, Holland & Knight LLP in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(hf) At the Closing DateClosing, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the General Disclosure Package, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing General Disclosure Materials Package contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) 2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) 3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there no event, change, development, circumstance or occurrence has been no occurred that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in a Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as 5. No order suspending the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service effectiveness of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectusqualification or registration of the Securities, as the Agent Warrants or the Agent Warrant Shares under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the accuracy at Company's knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Closing Date Commission).
6. The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the representations and warranties staff of the Commission or such authorities.
(g) At the Closing, the Company as shall furnish to the performance Placement Agent a certificate, dated the date of its delivery, and signed by the Company of its obligations hereunder, or as to the fulfillment Secretary of the conditions concurrent Company, in form and precedent substance reasonably satisfactory to the obligations hereunder of the Placement Agent.
(lh) The Shares FINRA shall not have raised any unresolved objection with respect to the fairness and Warrant Shares shall have been approved for listing, subject reasonableness of the placement agency terms and arrangements relating to issuance, on NYSE Amex Equitiesthe issuance and sale of the Securities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At . On the Closing Date, there the Accountants shall be have furnished to the Placement Agent a “bring down” letter, dated the Closing Date, confirming the statements contained in the Comfort Letter and updating the procedures specified in the Comfort Letter to a specified date not more than five days prior to the Closing Date.
(g) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject quotation on the OTC Bulletin Board or traded on a national securities exchange upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit B hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with the OfferingClosing Date.
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Sources: Placement Agent Agreement (Premier Power Renewable Energy, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus (or, in each case, any supplement or amendment thereto) or the qualification or registration of the Securities under the securities laws or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and Statement, the ProspectusProspectus or the General Disclosure Package (in each case exclusive of any amendment thereof subsequent to the Applicable Time), (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, Company (except for changes contemplated by the issuance of the Notes and the Warrants pursuant to the Securities Purchase Agreement) or any decreases in net current assets or net assets or other items specified by the Placement Agent, of its Subsidiaries or any increases in dividend or distribution of any items specified by the Placement Agentkind declared, in each case as compared with amounts shown in the latest balance sheet included in the Prospectusset aside for payment, except in each case for changes, increases paid or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed made by the Company on or prior to the date any class of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.capital stock or
Appears in 1 contract