Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent to place the Firm Shares on the First Closing Date and the Option Shares on the Second 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 First Closing Date or the Second Closing Date, as the case may be, 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: (a) The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 2:00 P.M., New York City Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 2:00 P.M., New York City Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or you, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period 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 First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b). (b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Placement Agent. (c) The legality and sufficiency of the authorization, issuance and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement 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 or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact that, in the opinion of counsel for the Placement Agent, is material or omits to state a fact that, 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, 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 public offering or placement of the Shares as contemplated hereby. (f) There shall have been furnished to you on the First Closing Date or the Second Closing Date, as the case may be, except as otherwise expressly provided below: (i) An opinion of ▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel for the Company, addressed to the Placement Agent and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (1) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and the Company has been duly qualified to do business as a foreign corporation under the corporation law of, and is in good standing as such in, each of the jurisdictions specified in Schedule B, except where the failure so to qualify would not have a material adverse effect upon the condition (financial or otherwise) or results of operations of the Company; (2) the authorized capital stock of the Company, of which there is outstanding the amount set forth in the Registration Statement and Prospectus (except for subsequent issuances, if any, pursuant to stock options or other rights referred to in the Prospectus), conforms as to legal matters in all material respects to the description thereof in the Registration Statement and Prospectus; (3) the issued and outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable; (4) the certificates for the Shares to be delivered hereunder are in due and proper form, and when duly countersigned by the Company's transfer agent and delivered to you or upon your order against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable; (5) the Registration Statement has become effective under the 1933 Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act, and the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable), the Prospectus and each amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act; (6) such counsel have no reason to believe that either the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) or the Prospectus, or the Registration Statement or the Prospectus as amended or supplemented (except as aforesaid), as of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made; provided, however, that such counsel need not express any opinion as to the financial statements or other statistical or financial data included in the Registration Statement or Prospectus; (7) the statements in the Registration Statement and the Prospectus, as amended or supplemented, summarizing statutes, rules and regulations are accurate and fairly and correctly present the information required to be presented by the 1933 Act or the rules and regulations thereunder, in all material respects and such counsel does not know of any statutes, rules and regulations required to be described or referred to in the Registration Statement or the Prospectus that are not described or referred to therein as required; and such counsel does not know of any legal or governmental proceedings pending or threatened required to be described in the Prospectus that are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed, as required; (8) the statements under the captions "Management—2000 Stock Compensation Plan," "Management—Stock Option Plan for Nonemployee Directors," "Certain Relationships and Related Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the Prospectus, insofar as such 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; (9) this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights and by the exercise of judicial discretion in accordance with general principles applicable to equitable and similar remedies and except as to those provisions relating to indemnities for liabilities arising under the 1933 Act as to which no opinion need be expressed; and no approval, authorization or consent of any public board, agency, or instrumentality of the United States or of any state or other jurisdiction is necessary in connection with the issue or sale of the Shares by the Company pursuant to this Agreement (other than under the 1933 Act, applicable blue sky laws and the rules of the NASD) or the consummation by the Company of any other transactions contemplated hereby; (10) the execution and performance of this Agreement will not contravene any of the provisions of, or result in a default under, any agreement, franchise, license, indenture, mortgage, deed of trust, or other instrument known to such counsel, of the Company or by which any of its property is bound and which contravention or default would be material to the Company; or violate any of the provisions of the articles of incorporation or bylaws of the Company or, so far as is known to such counsel, violate any statute, order, rule or regulation of any regulatory or governmental body having jurisdiction over the Company; (11) to such counsel's knowledge, based solely on certificates of responsible officers of the Company as to the facts concerning such offers and sales, all offers and sales of the Company's capital stock since September 30, 1999 were at all relevant times exempt from the registration requirements of the 1933 Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws; (12) the Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the Investment Company Act. In rendering such opinion, such counsel may state that they are relying upon the certificate of ▇▇▇▇▇ Fargo Shareowner Services, the transfer agent for the Common Stock, as to the number of shares of Common Stock at any time or times outstanding, and that insofar as their opinion under clause (6) above relates to the accuracy and completeness of the Prospectus and Registration Statement, it is based upon a general review with the Company's representatives and independent accountants of the information contained therein, without independent verification by such counsel of the accuracy or completeness of such information. Such counsel may also rely upon the opinions of other competent counsel and, as to factual matters, on certificates of officers of the Company and of state officials, in which case their opinion is to state that they are so doing and copies of said opinions or certificates are to be attached to the opinion unless said opinions or certificates (or, in the case of certificates, the information therein) have been furnished to the Placement Agent in other form. (ii) Such opinion or opinions of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the incorporation of the Company, the validity of the Shares to be sold by the Company, the Registration Statement and the Prospectus 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 First Closing Date or the Second Closing Date, as the case may be, 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 First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and (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 has been issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act. 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 (1) and (2) of this subparagraph to be set forth in said certificate. (iv) At the time the effectiveness of the Registration Statement and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you from each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LTD, independent accountants, the first one to be dated the date of the effectiveness of the Registration Statement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, to the effect set forth in Schedule A. 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 the Placement Agent to proceed with the public offering or placement of the Shares as contemplated hereby. (v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying the truth and accuracy of any statistical or financial figure included in the Prospectus which has 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 Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the Placement Agent's obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of Placement Agent or the C
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent to place the Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall hereunder will 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 First Closing Date or the Second Closing Date, as the case may beIssuers herein, to the accuracy of the statements of officers of the Company Issuers made pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder, hereunder and to the following additional conditionsconditions precedent and conditions subsequent:
(a) The Registration Statement Placement Agent shall have become effective either prior to received a letter, dated the execution of this Agreement or not later than 2:00 P.M., New York City Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 2:00 P.M., New York City Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or you, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period and the Company will provide evidence satisfactory to the Placement Agent and the purchasers of Securities, of PriceWaterhouseCoopers LLP addressed to the Placement Agent, the Parent, the Company and the purchasers of the Securities pursuant to this Agreement confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") and to the effect that:
(i) in their opinion the financial statements and schedules examined by them and included in the Offering Document comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements included in the Offering Document;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Parent and the Company, and of all subsidiaries of the Company for which such interim financial statements are provided, inquiries of officials of the Parent, the Company, and of such timely filing subsidiaries, who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(or a post-effective amendment providing such information shall have been filed and declared effective A) the unaudited financial statements included in accordance the Offering Document do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules 430A and 424(b)). If Regulations or any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by such accountants, or at 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, subsequent specified date not more than three business days prior to the First Closing Date, there was any change in the capital stock or any material increase in long-term debt of the Parent or the Company shall and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets, as compared with amounts shown on the latest balance sheet included in the Offering Document, or
(C) for the period from the closing date of the latest income statement included in the Offering Document to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Offering Document, in consolidated net sales, net operating income or in the total or per share amounts of consolidated income before extraordinary items or net income; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Document disclose have provided evidence occurred or may occur or which are described in such letter;
(iv) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review on pro forma financial information as described in Statement on Standards for Attestation Engagement No. 1, Reporting on Pro Forma Financial Statements, on the pro forma financial statements included in the Offering Document;
(v) on the basis of the review referred to in clause (iv) above, nothing came to their attention that caused them to believe that the pro forma financial statements included in the Offering Document do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; and
(vi) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Document (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Parent or the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such filing general accounting records and effectiveness other procedures specified in accordance such letter and have found such dollar amounts, percentages and other financial information to be in agreement with Rule 462(b)such results, except as otherwise specified in such letter.
(vii) the presentation of Management's Discussion and Analysis of Financial Condition and Results of Operations in the Offering Document includes, in all material respects, the required elements of the rules and regulations adopted by the Commission; the historical financial amounts included therein have been accurately derived, in all material respects, from the Company's financial statements; and the underlying information, determination, estimates and assumptions of the Company provide a reasonable basis for the disclosures contained therein.
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Placement Agent.
(c) The legality and sufficiency of the authorization, issuance and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement 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 or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact that, in the opinion of counsel for the Placement Agent, is material or omits to state a fact that, 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 (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue and sale of the Notes and the Series A Shares, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial or affecting particularly the other), business prospects, properties or properties results of operations of the Company, whether or not arising in the ordinary course of businessParent and its subsidiaries taken as a whole, which, in the reasonable judgment of the Placement Agent, is material and adverse to the Parent and its subsidiaries taken as a whole and makes it impractical or inadvisable to proceed with the public offering or placement completion of the Shares issuance or the sale of and payment for the Securities; (B) any downgrading in the rating of any debt securities of the Parent, the Company or any of their subsidiaries by any "nationally recognized statistical rating organization" (as contemplated herebydefined 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 Parent, the Company or any of their subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange or the Nasdaq National Market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Parent, the Company or any of their subsidiaries on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Placement Agent, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the issuance or sale of and payment for the Notes and the Series A Shares.
(fc) There The Placement Agent shall have been furnished to you on the First Closing Date received an opinion or the Second opinions, dated such Closing Date, as the case may be, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel for the CompanyIssuers, addressed to the Placement Agent and dated the First Closing Date or the Second Closing Date, as the case may be, substantially to the effect that:
(1i) Each of the Parent, the Company has been and each subsidiary of the Company was duly incorporated and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Minnesota incorporation, with corporate power and authority to own its properties and conduct its business businesses as described in the Prospectus; Offering Document.
(ii) Each of the Transaction Documents (except for the Envirotest Agreement and the Company Transervice Agreement) has been duly qualified to do business as a foreign corporation under the corporation law ofauthorized, executed and is in good standing as such in, delivered by each of the jurisdictions specified in Schedule BParent, except where the failure so Company and their subsidiaries (to qualify would not have the extent each is a material adverse effect upon the condition (financial or otherwise) or results of operations party thereto); each of the Company;Transaction Documents conforms to the description thereof contained in the Offering Document (to the extent described therein); and each of the Transaction Documents (other than this Agreement and the Subscription Agreement) constitutes valid and legally binding obligations of each of the Parent, the Company and their subsidiaries (to the extent each is a party thereto) enforceable in accordance with its respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and, as to rights of indemnification and contribution, to principles of public policy and federal and state securities laws relating thereto.
(2iii) The Notes, the authorized capital stock of Guarantees and the Company, of which there is outstanding the amount set forth in the Registration Statement and Prospectus (except for subsequent issuances, if any, pursuant to stock options or other rights referred to in the Prospectus), conforms as to legal matters Series A Shares conform in all material respects to the description thereof in the Registration Statement and Prospectus;Offering Document.
(3iv) The Notes and the Guarantees have been duly authorized and executed by the Company and the Guarantors, respectively, and, when the Notes are authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, the Notes and the Guarantees will constitute valid and binding obligations of the Company and the Guarantors, respectively, enforceable against the Company and the Guarantors, respectively, in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and, as to rights of indemnification and contribution, to principles of public policy and federal and state securities laws relating thereto.
(v) The Series A Shares have been duly authorized and, when issued and delivered to and paid for by the purchasers thereof in accordance with the terms of the Subscription Agreement, will have been validly issued and fully paid and nonassessable.
(vi) [Intentionally omitted.]
(vii) To our knowledge, there are no preemptive rights or similar rights that have not been waived to subscribe for or purchase the Securities upon their issuance and sale by the Issuers pursuant to this Agreement and the Subscription Agreement. To our knowledge, no securityholder of any Issuer has any right that has not been waived to require such Issuer to register the sale of any securities owned by such securityholder under the Securities Act in the offering and sale contemplated by this Agreement and the Subscription Agreement.
(viii) The execution, delivery of, and performance by each of the Parent, the Company and their subsidiaries (to the extent each is a party thereto) of its obligations under each of the Transaction Documents (including the issuance and sale of the Securities) and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Parent, the Company or any subsidiary of the Company or any of their respective properties, or the charter or by-laws of the Parent, the Company or any such subsidiary, any agreement or instrument set forth on Schedule B attached hereto or the Transaction Documents, and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement and the Subscription Agreement.
(ix) Each of the Issuers is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Offering Document and the consummation of the other Transactions, will not, be an "investment company" as defined in the Investment Company Act.
(x) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Parent, the Company or any subsidiary of the Parent or the Company for the consummation of the Transactions or otherwise in connection with the issuance and sale of the Securities, other than those consents, approvals, authorizations, orders or filings that have been made or obtained and such as may be required by the Securities Act (including Regulation D thereunder) and securities or blue sky laws of any state of the United States or of any foreign jurisdiction in connection with the offer and sale of the Securities and as may be required under the Securities Act in connection with the Registration Rights Agreement and the Investors Agreement.
(xi) It is not necessary in connection with the offer, sale and delivery of the Securities by the Parent and the Company to the purchasers thereof pursuant to this Agreement and the Subscription Agreement to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
(xii) Except as set forth in the Offering Document, all outstanding shares of the capital stock of the Parent, the Company and each of their subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Document; the Parent is the record owner of all of the issued and outstanding capital stock of the Company has been duly authorized and validly Company. The Company, directly or through subsidiaries, is the record owner of all of the issued and is fully paid and nonassessable;
(4) the certificates for the Shares to be delivered hereunder are in due and proper form, and when duly countersigned by outstanding capital stock of each subsidiary of the Company's transfer agent and delivered to you or upon your order against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable;
(5) the Registration Statement has become effective under the 1933 Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act, and the Registration Statement (including the information deemed to be part securityholders of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable)Parent, the Prospectus Company and each amendment their subsidiaries have no preemptive rights with respect to the Securities.
(xiii) Except as set forth in the Offering Document or supplement thereto (except for the financial statements and other statistical any Transaction Document, there are no contracts, agreements or financial data included therein as understandings known to which such counsel need express no opinion) comply as between the Parent, the Company or any of their subsidiaries and any person granting such person the right to form in all material respects require the Parent, the Company or any of their subsidiaries to file a registration statement under the Securities Act with the requirements respect to any securities of the 1933 Act;
(6) such counsel have no reason to believe that either Parent, the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) Company or the Prospectus, or the Registration Statement or the Prospectus as amended or supplemented (except as aforesaid), as any of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made; provided, however, that such counsel need not express any opinion as to the financial statements or other statistical or financial data included in the Registration Statement or Prospectus;
(7) the statements in the Registration Statement and the Prospectus, as amended or supplemented, summarizing statutes, rules and regulations are accurate and fairly and correctly present the information required to be presented by the 1933 Act or the rules and regulations thereunder, in all material respects and such counsel does not know of any statutes, rules and regulations required to be described or referred to in the Registration Statement or the Prospectus that are not described or referred to therein as required; and such counsel does not know of any legal or governmental proceedings pending or threatened required to be described in the Prospectus that are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus subsidiaries owned or to be owned by such person or to require the Parent, the Company or any of their subsidiaries to include such securities in any registration statement filed as exhibits to by the Registration Statement that are not described Parent, the Company or filed, as required;any of their subsidiaries under the Securities Act.
(8) the xiv) The statements under the captions "Management—2000 Stock Compensation PlanBusiness--Legal Proceedings," "Management—Stock Option Plan for Nonemployee DirectorsDescription of Other Indebtedness," "Certain Relationships and Related TransactionsDescription of the Notes," "Description of Capital Stock" and "Shares Eligible for Future SaleCertain United States Federal Income Tax Considerations" in the ProspectusOffering Document, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein or matters of lawtherein, are accurate summaries and fairly and correctly present, present in all material respects, respects the information called for with respect to such legal matters, documents and matters;
(9) this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is proceedings as if such Offering Document were a legal, valid and binding agreement of the Company, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights and by the exercise of judicial discretion in accordance with general principles applicable to equitable and similar remedies and except as to those provisions relating to indemnities for liabilities arising under the 1933 Act as to which no opinion need be expressed; and no approval, authorization or consent of any public board, agency, or instrumentality of the United States or of any state or other jurisdiction is necessary in connection with the issue or sale of the Shares by the Company pursuant to this Agreement (other than under the 1933 Act, applicable blue sky laws and the rules of the NASD) or the consummation by the Company of any other transactions contemplated hereby;
(10) the execution and performance of this Agreement will not contravene any of the provisions of, or result prospectus included in a default under, any agreement, franchise, license, indenture, mortgage, deed of trust, or other instrument known to such counsel, of the Company or by which any of its property is bound and which contravention or default would be material to the Company; or violate any of the provisions of the articles of incorporation or bylaws of the Company or, so far as is known to such counsel, violate any statute, order, rule or regulation of any regulatory or governmental body having jurisdiction over the Company;
(11) to such counsel's knowledge, based solely registration statement on certificates of responsible officers of the Company as to the facts concerning such offers and sales, all offers and sales of the Company's capital stock since September 30, 1999 were at all relevant times exempt from the registration requirements of the 1933 Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws;
(12) the Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the Investment Company Act. In rendering such opinion, such counsel may state that they are relying upon the certificate of ▇▇▇▇▇ Fargo Shareowner Services, the transfer agent for the Common Stock, as to the number of shares of Common Stock at any time or times outstanding, and that insofar as their opinion under clause (6) above relates to the accuracy and completeness of the Prospectus and Registration Statement, it is based upon a general review with the Company's representatives and independent accountants of the information contained therein, without independent verification by such counsel of the accuracy or completeness of such information. Such counsel may also rely upon the opinions of other competent counsel and, as to factual matters, on certificates of officers of the Company and of state officials, in which case their opinion is to state that they are so doing and copies of said opinions or certificates are to be attached to the opinion unless said opinions or certificates (or, in the case of certificates, the information therein) have been furnished to the Placement Agent in other formForm S-1.
(ii) Such opinion or opinions of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the incorporation of the Company, the validity of the Shares to be sold by the Company, the Registration Statement and the Prospectus 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 First Closing Date or the Second Closing Date, as the case may be, 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 First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and
(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 has been issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act. 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 (1) and (2) of this subparagraph to be set forth in said certificate.
(iv) At the time the effectiveness of the Registration Statement and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you from each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LTD, independent accountants, the first one to be dated the date of the effectiveness of the Registration Statement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, to the effect set forth in Schedule A. 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 the Placement Agent to proceed with the public offering or placement of the Shares as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying the truth and accuracy of any statistical or financial figure included in the Prospectus which has 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 Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the Placement Agent's obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of Placement Agent or the C
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent to place the Firm Shares on the First Closing Date Agent, and the Option Shares on closing of the Second Closing Date shall be sale of the Placement Agent Securities hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein set forth as of and in the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereofPurchase Agreement, to the performance by the Company of its obligations hereunderhereunder and in the Purchase Agreement, and to each of the following additional terms and conditions:
(a) The Registration Statement shall have become effective either prior , except as otherwise disclosed to the execution of this Agreement or not later than 2:00 P.M., New York City Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 2:00 P.M., New York City Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued acknowledged and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or you, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period 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 First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified waived by the Placement Agent.:
(c) The legality and sufficiency of the authorization, issuance and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement, and all A. All corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement 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 or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact that, in the opinion of counsel for the Placement Agent, is material or omits to state a fact that, 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 authorization, form, execution, delivery and delivery validity of each of this Agreement, there the Placement Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect to the Placement Agent Securities shall not have occurred any change, or any development involving a prospective change, be reasonably satisfactory in or affecting particularly the business or properties of the Company, whether or not arising in the ordinary course of business, which, in the judgment of all material respects to the Placement Agent, makes it impractical or inadvisable to proceed with the public offering or placement of the Shares as contemplated hereby.
(f) There B. The Placement Agent shall have been furnished received from outside US counsel to you on the First Closing Date or Company each such counsel’s written opinion with respect to the Second Closing Date, as the case may be, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel for the CompanyPlacement Agent Securities, addressed to the Placement Agent and dated as of the First Closing Date or the Second Closing Date, as the case may be, in form and substance reasonably satisfactory to the Placement Agent.
C. The Placement Agent shall have received customary certificates of the Company’s executive officers, as to the accuracy of the representations and warranties contains in the Purchase Agreement, and a certificate of the Company’s secretary certifying that the Company’s charter documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Placement are in full force and effect that:and have not been modified; and (iii) as to the incumbency of the officers of the Company.
(1) D. The Common Shares shall be registered under the Exchange Act and, as of the Closing Date, Company shall have received approval to list or quote all Shares sold in the offering on the Trading Markets for which such approvals are required, and the Common Shares and shares issuable upon exercise of the Warrants shall be listed and admitted and authorized for trading on the Trading Markets for which such admission and authorizations are required, and satisfactory evidence of such action shall have been provided to the Placement Agent. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Shares under the Exchange Act or delisting or suspending from trading the Common Shares from the applicable Trading Markets, nor has the Company has received any information suggesting that the Commission or the applicable Trading Markets are contemplating terminating such registration or listings.
E. No action shall have been duly incorporated taken and is validly existing no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as a corporation in good standing under the laws of the State of Minnesota with corporate power and authority to own its properties and conduct its business as described in Closing Date, prevent the Prospectus; and the Company has been duly qualified to do business as a foreign corporation under the corporation law of, and is in good standing as such in, each issuance or sale of the jurisdictions specified in Schedule B, except where Placement Agent Securities or materially and adversely affect or potentially and adversely affect the failure so to qualify would not have a material adverse effect upon the condition (financial business or otherwise) or results of operations of the Company;
(2) the authorized capital stock ; and no injunction, restraining order or order of the Company, any other nature by any federal or state court of which there is outstanding the amount set forth in the Registration Statement and Prospectus (except for subsequent issuances, if any, pursuant to stock options or other rights referred to in the Prospectus), conforms as to legal matters in all material respects to the description thereof in the Registration Statement and Prospectus;
(3) the issued and outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable;
(4) the certificates for the Shares to be delivered hereunder are in due and proper form, and when duly countersigned by the Company's transfer agent and delivered to you or upon your order against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable;
(5) the Registration Statement has become effective under the 1933 Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has competent jurisdiction shall have been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act, and the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable), the Prospectus and each amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act;
(6) such counsel have no reason to believe that either the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) or the Prospectus, or the Registration Statement or the Prospectus as amended or supplemented (except as aforesaid), as of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as amended or supplemented, if applicable, as of the First Closing Date or which would prevent the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made; provided, however, that such counsel need not express any opinion as to the financial statements or other statistical or financial data included in the Registration Statement or Prospectus;
(7) the statements in the Registration Statement and the Prospectus, as amended or supplemented, summarizing statutes, rules and regulations are accurate and fairly and correctly present the information required to be presented by the 1933 Act or the rules and regulations thereunder, in all material respects and such counsel does not know of any statutes, rules and regulations required to be described or referred to in the Registration Statement or the Prospectus that are not described or referred to therein as required; and such counsel does not know of any legal or governmental proceedings pending or threatened required to be described in the Prospectus that are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed, as required;
(8) the statements under the captions "Management—2000 Stock Compensation Plan," "Management—Stock Option Plan for Nonemployee Directors," "Certain Relationships and Related Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the Prospectus, insofar as such 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;
(9) this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights and by the exercise of judicial discretion in accordance with general principles applicable to equitable and similar remedies and except as to those provisions relating to indemnities for liabilities arising under the 1933 Act as to which no opinion need be expressed; and no approval, authorization or consent of any public board, agency, or instrumentality of the United States or of any state or other jurisdiction is necessary in connection with the issue issuance or sale of the Shares by Placement Agent Securities or materially and adversely affect or potentially and adversely affect the Company pursuant to this Agreement (other than under the 1933 Act, applicable blue sky laws and the rules business or operations of the NASD) or the consummation by the Company.
F. The Company of any other transactions contemplated hereby;
(10) the execution and performance of this shall have entered into a Purchase Agreement will not contravene any with each of the provisions of, or result in a default under, any agreement, franchise, license, indenture, mortgage, deed of trust, or other instrument known to such counsel, Purchasers of the Company or by which any of its property is bound Placement Agent Securities and which contravention or default would such agreements shall be material to the Company; or violate any of the provisions of the articles of incorporation or bylaws of the Company orin full force and effect and shall contain representations, so far as is known to such counsel, violate any statute, order, rule or regulation of any regulatory or governmental body having jurisdiction over the Company;
(11) to such counsel's knowledge, based solely on certificates of responsible officers warranties and covenants of the Company as to the facts concerning such offers and sales, all offers and sales of the Company's capital stock since September 30, 1999 were at all relevant times exempt from the registration requirements of the 1933 Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws;
(12) the Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the Investment Company Act. In rendering such opinion, such counsel may state that they are relying agreed upon the certificate of ▇▇▇▇▇ Fargo Shareowner Services, the transfer agent for the Common Stock, as to the number of shares of Common Stock at any time or times outstanding, and that insofar as their opinion under clause (6) above relates to the accuracy and completeness of the Prospectus and Registration Statement, it is based upon a general review with the Company's representatives and independent accountants of the information contained therein, without independent verification by such counsel of the accuracy or completeness of such information. Such counsel may also rely upon the opinions of other competent counsel and, as to factual matters, on certificates of officers of between the Company and of state officials, in which case their opinion is to state that they are so doing and copies of said opinions or certificates are to be attached the Purchasers.
G. FINRA shall have raised no objection to the opinion unless said opinions or certificates (or, in fairness and reasonableness of the case terms and arrangements of certificatesthis Agreement. In addition, the information therein) have been furnished to the Placement Agent in other form.
(ii) Such opinion or opinions of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLPCompany shall, counsel for if requested by the Placement Agent, dated make or authorize Placement Agent’s counsel to make on the First Closing Date or Company’s behalf, any filing with the Second Closing Date, as FINRA Corporate Financing Department pursuant to the case may be, applicable FINRA Rules with respect to the incorporation offering and pay all filing fees required in connection therewith. If any of the Company, the validity of the Shares to be sold by the Company, the Registration Statement and the Prospectus 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 First Closing Date or the Second Closing Date, as the case may be, 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 First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and
(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 has been issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act. The delivery of the certificate provided for specified in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1) and (2) of this subparagraph to be set forth in said certificate.
(iv) At the time the effectiveness of the Registration Statement and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you from each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LTD, independent accountants, the first one to be dated the date of the effectiveness of the Registration Statement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, to the effect set forth in Schedule A. There Section 8 shall not have been any change or decrease specified in the letters referred to in fulfilled when and as required by this subparagraph which makes it impractical or inadvisable in the judgment Agreement, all obligations of the Placement Agent to proceed with hereunder may be cancelled by the public offering Placement Agent at, or placement of at any time prior to, the Shares as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying the truth and accuracy . Notice of any statistical or financial figure included in the Prospectus which has 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 cancellation shall be in compliance with the provisions hereof only if they are satisfactory to you and to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the Placement Agent's obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification given to the Company without liability on the part of Placement Agent in writing or the Corally. Any such oral notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Placement Agency Agreement (Village Farms International, Inc.)