Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents. (f) The Placement Agents 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 Agents. (g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form. (h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents. (l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 2 contracts
Sources: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 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 Agents, 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 Agents Representative shall have received an opinionopinion and negative assurance letter, each dated as of the Closing Date, Date of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(fvi) The Placement Agents Representative shall have received an opinion, dated as of the Closing Date, of intellectual property K&L Gates LLP, as counsel to the CompanyPlacement Agents, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(gvii) The Placement Agents On the date hereof and on the Closing Date, the Representative shall have received a negative assurance letter, dated as of letter from the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 and other matters covered by its letter delivered to the Placement AgentsAgents concurrently with the execution of this Agreement, which are derived from and the general accounting, financial or other records effect 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 letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in agreementsuch prior letter.
(iviii) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative to the effect that each signer has carefully examined the Registration Statement Statement, the Final Prospectus and the Disclosure Package, and that to each of such person’s knowledge:
(ia) (A1) 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 Final Prospectus nor the Pricing 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 (B2) no event has occurred as a result of which it is necessary to amend or supplement the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(iib) 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 respects for those representations and warranties qualified by materiality and in all material respectsrespects for those representations and warranties that are not qualified by materiality.
(iiic) 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.
(ivd) 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; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
(ve) Subsequent to the date of the most recent financial statements in the Final Prospectus, there has been no Material Adverse EffectChange.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agents 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.
(kix) The Company shall have furnished or caused to be furnished to the Placement Agents Representative such certificates, in addition to those specifically mentioned herein, as the Placement Agents Representative 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 Final Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company Company, of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(lx) The Representative shall have received the letters substantially in the form of Exhibit A attached hereto from each director, officer and stockholder of the Company named in Schedule 2 hereto.
(xi) The Shares and Warrant Shares shall be eligible have been approved for trading, when issued, quotation upon notice of issuance on the OTC Bulletin BoardThe Nasdaq Capital Market.
(mxii) 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 Representative makes it impracticable to proceed with the Offeringinitial public offering 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 2 contracts
Sources: Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents Representative and the Placement Agents Representative did not object thereto in good faith on a timely basisfaith, and the Placement Agents Representative 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 Agents Representative 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 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 Agents Representative 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 Womble, Carlyle, M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC GBH CPAs PC shall have furnished to the Placement Agents Representative a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agents Representative and in form and substance satisfactory to the Placement AgentsRepresentative, 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 AgentsRepresentative, or any increases in any items specified by the Placement AgentsRepresentative, 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 AgentsRepresentative, or any increases in any items specified by the Placement AgentsRepresentative, 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 AgentsRepresentative, 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 AgentsRepresentative, 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) Lonquist & Co. LLC shall have furnished to the Representative a letter, dated the Closing Date, addressed to the Representative and in form and substance satisfactory to the Representative.
(h) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Sources: Placement Agency Agreement (Houston American Energy Corp)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents Agent hereunder are subject to each of the following terms and conditions:
(ia) Notification that the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No stop order preventing or suspending the use of the Prospectus or any “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no 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 proceedings 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), (iii) and any request requests for additional information on the part of the staff of any securities Commission (to be included in the Registration Statement or other governmental authority (including, without limitation, the CommissionProspectus or otherwise) 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering priceCommission.
(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 The representations and warranties of the Company contained herein incorporated by reference in this Agreement and in any certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects at when made and on and as of the Closing Date, Date as if made on such date, and . The Company shall have performed all covenants and agreements herein and satisfied all the conditions contained in this Agreement required to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with satisfied by the Company it at or prior to before the Closing Date shall have been duly performed, fulfilled or complied with in all material respectsDate.
(ed) The Placement Agents shall have received an opinionon the Closing Date a certificate, addressed to the Placement Agents and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, in their capacity as such officers, to the effect that: [(i) the representations, warranties and agreements of the Company in the Subscription Agreements were true and correct when made and are true and correct as of the Closing Date; (ii) the Company has performed all covenants and agreements and satisfied all conditions contained herein and in the Subscription Agreements; (iii) they have carefully examined the Registration Statement the Prospectus and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of Womblethe Effective Date the Prospectus did not include, Carlyleand as of [●]:00 [a.m./p.m.] (Eastern Time) on the date of this Agreement, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇no individual Issuer Free Writing Prospectus, PLLCincluded, as counsel any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the CompanyRegistration Statement or the Prospectus and was not so disclosed; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole].
(e) [The Placement Agents shall have received on the Closing Date a signed letter from the chief financial officer addressed to the Placement Agents and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents, with respect to the financial statements and certain financial information contained in the Registration Statement.]
(f) The Placement Agents shall have received on the Closing Date from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Company, an opinionopinion and negative assurance statement, addressed to the Placement Agents and dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of on the Closing Date, of ▇▇▇▇Date from Winston & S▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇LLP, as counsel to for the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”)negative assurance statement, addressed to the Placement Agents and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents.
(h) The Placement Agents shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, 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, there shall 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 material change in the capital stock of the Company or any increase material change in the long-term debt indebtedness (other than in the ordinary course of business) of the Company, (ii) except as set forth or any decreases in net current assets contemplated by the Registration Statement, no material oral or net assets written agreement or other items specified transaction shall have been entered into by the Placement Agents, or any increases in any items specified by the Placement Agents, in each case as compared with amounts shown Company that is not in the latest balance sheet included ordinary course of business or that could reasonably be expected to result in a material reduction 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, which are derived from the general accounting, financial or other records future earnings of the Company, as (iii) no loss or damage (whether or not insured) to the case may beproperty of the Company shall have been sustained that had or could reasonably be expected to have a material adverse effect, which appear (iv) no legal or governmental action, suit or proceeding affecting the Company or any of its properties that is material to the Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or, to the Company’s knowledge, threatened and (v) there shall not have been any material change in the Prospectus assets, properties, condition (financial or in Part II ofotherwise), or in exhibits the results of operations, business affairs or schedules to, business prospects of the Registration Statement, and have compared such amounts, percentages and financial information Company or its subsidiaries considered as a whole that makes it impractical or inadvisable in the Placement Agents’ judgment to proceed with such accounting, financial and other records and have found them to be in agreementthe purchase or offering of the Class A Interests as contemplated hereby.
(i) At the date that this Agreement is executed and delivered by the parties hereto (the “Execution Time”) and the Closing Date, there the Company shall be furnished have requested and caused Deloitte & Touche LLP to furnish to the Placement Agents a certificateAgent comfort letters, dated the date of its delivery, signed by each as of the Chief Executive Officer and the Chief Financial Officer of the CompanyClosing Date, in form and substance satisfactory to the Placement Agents 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 respectAgent.
(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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 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 Agents, would reasonably be expected by management to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company and the Selling Stockholders 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 the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) The Placement Agents Representative shall have received an opinionopinion and negative assurance letter, each dated as of the Closing Date, Date of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC▇▇▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(fvi) The Placement Agents Representative shall have received an opinion, dated as of the Closing Date, of intellectual property K&L Gates LLP, as counsel to the CompanyPlacement Agents, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(gvii) The Placement Agents On the date hereof and on the Closing Date, the Representative shall have received a negative assurance letter, dated as of letter from the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 and other matters covered by its letter delivered to the Placement AgentsAgents concurrently with the execution of this Agreement, which are derived from and the general accounting, financial or other records effect 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 letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in agreementsuch prior letter.
(iviii) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative to the effect that each signer has carefully examined the Registration Statement Statement, the Final Prospectus and the Disclosure Package, and that to each of such person’s knowledge:
(ia) (A1) 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 Final Prospectus nor the Pricing 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 (B2) no event has occurred as a result of which it is necessary to amend or supplement the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(iib) 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 respects for those representations and warranties qualified by materiality and in all material respectsrespects for those representations and warranties that are not qualified by materiality.
(iiic) 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.
(ivd) 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; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
(ve) Subsequent to the date of the most recent financial statements in the Final Prospectus, there has been no Material Adverse EffectChange.
(jix) The Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on At the Closing Date; provided , there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Selling Stockholders, in form and substance satisfactory to the Representative to the effect that (a) each of the representations and warranties of such Selling Stockholder contained in no event shall this Agreement were, when originally made, and are, at the Company time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality and (b) each of the covenants required herein to be obligated performed by such Selling Stockholder on or prior to qualify the date of such certificate has been duly, timely and fully performed and each condition herein required to do business in any jurisdiction where it is not now so qualified be complied with by such Selling Stockholder on or prior to take any action which would subject it to taxation or general service the delivery of process in any jurisdiction where it is not now so subjectsuch certificate has been duly, timely and fully complied with.
(kx) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Placement Agents Representative such certificates, in addition to those specifically mentioned herein, as the Placement Agents Representative 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 Final Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company or the Selling Stockholders as to the performance by the Company or the Selling Stockholders, as the case may be, of its their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(lxi) The Representative shall have received the letters substantially in the form of Exhibit A attached hereto from each director, officer and stockholder of the Company named in Schedule 3 hereto.
(xii) The Shares and Warrant Shares shall be eligible have been approved for trading, when issued, quotation upon notice of issuance on the OTC Bulletin BoardThe Nasdaq Capital Market.
(mxiii) 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 Representative makes it impracticable to proceed with the Offeringinitial public offering 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
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents Agent hereunder are subject to each of the following terms and conditions:
(ia) Notification that the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No stop order preventing or suspending the use of the Prospectus or any “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no 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 proceedings 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), (iii) and any request requests for additional information on the part of the staff of any securities Commission (to be included in the Registration Statement or other governmental authority (including, without limitation, the CommissionProspectus or otherwise) 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering priceCommission.
(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 The representations and warranties of the Company contained herein incorporated by reference in this Agreement and in any certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects at when made and on and as of the Closing Date, Date as if made on such date, and . The Company shall have performed all covenants and agreements herein and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before the Closing Date.
(d) The Placement Agents shall have received on the part Closing Date a certificate, addressed to the Placement Agents and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, in their capacity as such officers, to the effect that: (i) the representations, warranties and agreements of the Company in the Subscription Agreements were true and correct when made and are true and correct as of the Closing Date; (ii) the Company has performed all covenants and agreements and satisfied all conditions contained herein and in the Subscription Agreements; (iii) they have carefully examined the Registration Statement the Prospectus and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Prospectus did not include, and as of [●]:00 [a.m./p.m.] (Eastern Time) on the date of this Agreement, no individual Issuer Free Writing Prospectus, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus and was not so disclosed; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects 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 respectsits subsidiaries considered as a whole.
(e) The Placement Agents shall have received an opinion, dated as of on the Closing Date, of Womble, Carlyle, Date from L▇▇▇▇▇ & W▇▇▇▇▇▇ & ▇▇▇▇LLP, PLLCcounsel for the Company, as counsel an opinion and negative assurance statement, addressed to the CompanyPlacement Agents and dated the Closing Date, in form and substance reasonably satisfactory to the Placement Agents.
(f) The Placement Agents shall have received an opinionon the Closing Date from Winston & S▇▇▇▇▇ LLP, counsel for the Placement Agents, a negative assurance statement, addressed to the Placement Agents and dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated be reasonably satisfied that since the respective dates as of which information is given in the Closing DateRegistration Statement, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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, there shall 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 material change in the capital stock of the Company or any increase material change in the long-term debt indebtedness (other than in the ordinary course of business) of the Company, (ii) except as set forth or any decreases in net current assets contemplated by the Registration Statement, no material oral or net assets written agreement or other items specified transaction shall have been entered into by the Placement Agents, or any increases in any items specified by the Placement Agents, in each case as compared with amounts shown Company that is not in the latest balance sheet included ordinary course of business or that could reasonably be expected to result in a material reduction 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, which are derived from the general accounting, financial or other records future earnings of the Company, as (iii) no loss or damage (whether or not insured) to the case may beproperty of the Company shall have been sustained that had or could reasonably be expected to have a material adverse effect, which appear (iv) no legal or governmental action, suit or proceeding affecting the Company or any of its properties that is material to the Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or, to the Company’s knowledge, threatened and (v) there shall not have been any material change in the Prospectus assets, properties, condition (financial or in Part II ofotherwise), or in exhibits the results of operations, business affairs or schedules to, business prospects of the Registration Statement, and have compared such amounts, percentages and financial information Company or its subsidiaries considered as a whole that makes it impractical or inadvisable in the Placement Agents’ judgment to proceed with such accounting, financial and other records and have found them to be in agreementthe purchase or offering of the Class A Interests as contemplated hereby.
(ih) At the date that this Agreement is executed and delivered by the parties hereto (the “Execution Time”) and the Closing Date, there the Company shall be furnished have requested and caused Deloitte & Touche LLP to furnish to the Placement Agents a certificateAgent comfort letters, dated the date of its delivery, signed by each as of the Chief Executive Officer and the Chief Financial Officer of the CompanyClosing Date, in form and substance satisfactory to the Placement Agents 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 respectAgent.
(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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 and the Prospectus, if in the reasonable judgment of the Placement 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 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 Agents, 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 Agents shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLCGodward Kronish LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit D hereto.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 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 Agents a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, (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 financial information and other matters covered by the Comfort Letter, there have been any changes Letter and (iii) confirming in all material respects 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 Agents, or any increases in any items specified by the Placement Agents, 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 conclusions and findings set forth 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 in all material respects 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 withwith 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) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
5. 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 threatened by any securities or other governmental authority (including, without limitation, the Commission).
6. 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 are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(jh) At the Closing Date, there shall be furnished to the Placement Agents a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agents.
(i) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agents 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 Agents Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 AgentsAgent.
(lk) The Shares and Warrant Shares shall be eligible for trading, when issued, on the OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million Placement Agents shall have been issued received the letters referred to in Section 3(nn) and sold under (oo) hereof substantially in the Registration Statement in connection with the Offering.form of Exhibits ▇-▇, ▇-▇ and C.
Appears in 1 contract
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, and in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither and, that in the Prospectus nor case of the Pricing Disclosure Materials contains Prospectus, it will not contain any materially untrue statement of a material fact or omit to state a any 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 misleading
(d) The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement Agents’ reasonable opinion is material, or omits to state a fact that in the Placement Agents’ opinion is material and (B) no event has occurred as a result of which it is required to be stated therein or is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(iie) Each of Except as contemplated in the representations and warranties Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company contained and its subsidiaries considered as one enterprise, whether or not arising in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsordinary course of business.
(iiif) Each of the covenants required herein to be performed Unless waived by the Company on or prior to Applicable Placement Agent, the date of such certificate has been dulyApplicable Placement Agent shall have received, timely and fully performed and each condition herein as required to be complied with by the Company delivered pursuant to Section 7 on or prior before the date on which delivery of such opinion is required pursuant to Section 7(v), the opinions, addressed to such Applicable Placement Agent, of (i) Eversheds S▇▇▇▇▇▇▇▇▇ (US) LLP, corporate counsel for the Company, or other counsel satisfactory to the such Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D; and (ii), B▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, counsel to the Placement Agents, or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate has been duly, timely and fully complied withis required pursuant to Section 7(v).
(ivh) No stop order suspending On each date on which the effectiveness Company is required to deliver a certificate pursuant to Section 7(v), counsel for the Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Registration Statement Securities as herein contemplated, or in order to evidence the accuracy of any part thereof has been issued and no proceedings for that purpose have been instituted of the representations or are contemplated by warranties, or the Commissionfulfillment of any of the conditions, contained in this Agreement.
(vi) Subsequent The Placement Securities shall either have been (i) approved for listing on Nasdaq Global Market, subject only to notice of issuance, or (ii) the date Company shall have filed an application for listing of the most recent financial statements in Placement Securities on Nasdaq Global Market at, or prior to, the Prospectus, there has been no Material Adverse Effectissuance of any Placement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Sources: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents, 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 Agents shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇H▇▇▇▇ & ▇▇▇▇Lovells US LLP, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing DateClosing, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance reasonably satisfactory to the Placement Agents 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 Agents. The obligations of the Placement Agents hereunder are subject to the following conditions:
(a) All filings required by Rule 424, Rule 430A, Rule 430B and rule 430C of the Securities Act 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 Lead Placement Agents Agent and the Lead Placement Agents did Agent does not object thereto in good faith on a timely basisfaith, and (v) the Placement Agents 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 Section 6(b).
(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 the Subsidiary, 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 Lead Placement Agents 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, the Subsidiary, 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 Lead Placement Agent, have a Material Adverse EffectEffect or if, in the judgment of the Lead 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 Agents 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 Agentswith.
(f) The Placement Agents shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, satisfactory in form and substance reasonably satisfactory to the Placement Agents and counsel for the Placement Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, with respect to the following matters:
(i) The Company 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 owed or leased by it and to conduct its business as described in the Registration Statement and Prospectus; 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 outstanding shares of capital stock of the Company have been duly authorized, validly issued and to the knowledge of such counsel are fully paid and nonassessable, were issued in compliance in all material respects with requirements of federal and applicable state securities laws, and, to the knowledge of such counsel, were not issued in violation of or subject to any preemptive or 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, to the knowledge of such counsel, no preemptive or similar rights exist with respect to any of the Shares or the issue and sale thereof.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in this Agreement (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 Agreement). To such counsel’s knowledge, except as disclosed in or specifically contemplated by this Agreement, 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 the Subsidiary 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 on its part contemplated under this Agreement or the respective Purchase Agreements, except such as have been obtained or made under the Securities Act or the Securities Act 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 Agents 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 have been duly authorized, executed and delivered by the Company.
(viii) The execution and delivery of this Agreement, the Escrow 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 certificate 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 the Subsidiary 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 agreement filed by the Company or incorporated by reference into the Company’s Annual Report on Form 10-K for the year ended December 31, 2005 or in any filing with the Commission made thereafter, or (C) violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) any law, statute, rule or regulation of the State of California or the State of Delaware, or any federal law, statute, rule or regulation, of a type which are typically applicable to transactions similar to the transactions contemplated by this Agreement, the Escrow Agreement and the Purchase Agreements.
(ix) To the knowledge of such counsel, 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 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 Securities Act and the Securities Act Rules and Regulations.
(x) The statements under the captions (A) “Risk Factors – We will need additional capital in the future, and if it is not available on terms acceptable to us, or at all, we would have to scale back our expenditures and our development and commercialization activities,” Risk Factors – We depend on third parties for funding, clinical development, manufacturing and distribution of TOCOSOL Paclitaxel,” “Risk Factors – We rely on third party suppliers and manufacturers to produce products that we develop and failure to retain such suppliers and manufacturers would adversely impact our ability to commercialize our products,” “Risk Factors – Failure to satisfy Nasdaq National Market Listing requirements may result in our common stock being delisted from the Nasdaq National Market” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Collaboration and License Agreement with Schering AG” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2005 filed with the Commission which is incorporated by reference into the Prospectus; (B) “Schering Collaboration” in the Registration Statement; and (C) “10b5-1 Trading Plans and Share Retention Policies” and “Change in Control Agreements” in the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission regarding the Company’s 2006 Annual Meeting of Stockholders which is incorporated by reference into the Prospectus, in each case, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries in all material respects and fairly summarize in all material respects, the information called for with respect to such documents and matters (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) 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 (the “Investment Company Act”), and, after giving effect to the transactions contemplated hereby and the Purchase Agreement, the Company will not be 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.
(xii) To such counsel’s knowledge, no holder of securities of the Company has rights, which have not been waived, to require the Company to register with the Commission shares of Common Stock or other securities, as part of the offering contemplated hereby.
(xiii) The Registration Statement has become effective under the Securities 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, or to such counsel’s knowledge, is threatened or contemplated.
(xiv) The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations (other than the financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need express no opinion).
(xv) The documents incorporated by reference in the Prospectus (other than the financial statements, schedules and other financial or 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 to the Placement Agents and counsel for the Placement Agents, 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, but without independent check or verification, such counsel has no reason to believe that, as of the Effective Date of the Registration Statement, or any amendment thereto, (other than the financial statements, schedules and other financial or statistical data contained or incorporated by reference therein, as to which such counsel need express no belief) 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 or statistical data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Placement Agents shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ Procter LLP, counsel to the Placement Agents, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in customary formall respects to the Lead 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”)delivery, addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, confirming that (i) they are independent public accountants with respect to the Company within and the meaning of Subsidiary as required by 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 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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.Exchang
Appears in 1 contract
Sources: Placement Agency Agreement (Sonus Pharmaceuticals Inc)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, PLLC▇▇ LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsAgents and their counsel.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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.
(ie) At the Closing Date, there shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents 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 in all material respects 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 withwith 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 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 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 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 Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(f) At the Closing Date, there shall be furnished to the Placement Agents a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agents, certifying that (i) attached thereto is a true, complete and correct copy of the certificate of incorporation and bylaws of the Company as in effect on the Closing Date and (ii) that attached thereto are true, complete and correct copies of resolutions duly adopted by the board of directors of the Company and continuing in effect, which authorize the execution, delivery and performance by the Company of this Agreement and the transactions contemplated hereby.
(g) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agents 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.
(kh) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(li) The Shares Company and Warrant Shares the Selling Stockholders shall be eligible for tradingprovide such further information, when issuedcertificates and documents, on as the OTC Bulletin BoardPlacement Agents may reasonably request.
(mj) Units representing an aggregate purchase price of at least $5 million The Company shall have been issued prepared 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 Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, and in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of the Registration Statement, it will not contain any Issuer Free Writing Prospectus materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Prospectus shall have been filed unless statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a copy thereof was first submitted material fact or omit to state any material fact required to be stated therein or necessary to make the Placement Agents and statements therein, in the Placement Agents did light of the circumstances under which they were made, not object thereto in good faith on a timely basis, and the misleading
(d) The Placement Agents shall not have received certificates advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the CompanyPlacement Agents’ reasonable opinion is material, dated as of or omits to state a fact that in the Closing Date Placement Agents’ opinion is material and signed by is required to be stated therein or is necessary to make 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)statements therein not misleading.
(be) Since the respective dates Except as of which information is given contemplated in the Registration Statement and the Prospectus, (i) or disclosed in the Company’s reports filed with the Commission, there shall not have been a Material Adverse Effectany material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, 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 Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(cf) Since Unless waived by the respective dates as of which information is given in Applicable Placement Agent, the Registration Statement and the Prospectus, there Applicable Placement Agent 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 Datereceived, as if made on such date, and all covenants and agreements herein contained required to be performed delivered pursuant to Section 7 on or before the part date on which delivery of such opinion is required pursuant to Section 7(v), the Company and all conditions herein contained opinions, addressed 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 such Applicable Placement Agents shall have received an opinion, dated as of the Closing DateAgent, of Womble, Carlyle, (i) Eversheds ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇(US) LLP, PLLCcorporate counsel for the Company, as or other counsel satisfactory to the Companysuch Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agents.
(f) The Placement Agents shall have received an opinionAgent and their counsel, dated as of the Closing Datedate that the opinion is required to be delivered, of intellectual property counsel substantially similar to the Companyform attached hereto as Exhibit D; and (ii), in form and substance reasonably satisfactory to the Placement Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory counsel to the Placement Agents, confirming that (i) they are independent public accountants with respect or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate is required pursuant to Section 7(v).
(h) On each date on which the Company within is required to deliver a certificate pursuant to Section 7(v), counsel for the meaning Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale 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 Securities 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 ofherein contemplated, or in exhibits order to evidence the accuracy of any of the representations or schedules towarranties, or the Registration Statementfulfillment of any of the conditions, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be contained in agreementthis Agreement.
(i) At the Closing Date, there The Placement Securities shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
either have been (i) (A) As approved for listing on Nasdaq Global Market, subject only to notice of the date of such certificateissuance, (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 the Company shall have filed an application for listing of the representations and warranties of the Company contained in this Agreement werePlacement Securities on Nasdaq Global Market at, 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 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 issuance 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 EffectPlacement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Sources: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, or in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of the Registration Statement, it will not contain any Issuer Free Writing Prospectus materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Prospectus shall have been filed unless statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a copy thereof was first submitted material fact or omit to state any material fact required to be stated therein or necessary to make the Placement Agents and statements therein, in the Placement Agents did light of the circumstances under which they were made, not object thereto in good faith on a timely basis, and the misleading
(d) The Placement Agents shall not have received certificates advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the CompanyPlacement Agents’ reasonable opinion is material, dated as of or omits to state a fact that in the Closing Date Placement Agents’ opinion is material and signed by is required to be stated therein or is necessary to make 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)statements therein not misleading.
(be) Since the respective dates Except as of which information is given contemplated in the Registration Statement and the Prospectus, (i) or disclosed in the Company’s reports filed with the Commission, there shall not have been a Material Adverse Effectany material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, 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 Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(cf) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there The Applicable Placement Agent 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 Datereceived, as if made on such date, and all covenants and agreements herein contained required to be performed delivered pursuant to Section 7 on or before the part date on which delivery of such opinion is required pursuant to Section 7(v), the Company and all conditions herein contained opinions, addressed 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 such Applicable Placement Agents shall have received an opinion, dated as of the Closing DateAgent, of Womble, Carlyle, (i) Eversheds ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇(US) LLP, PLLCcorporate counsel for the Company, as or other counsel satisfactory to the Companysuch Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agents.
(f) The Placement Agents shall have received an opinionAgent and their counsel, dated as of the Closing Datedate that the opinion is required to be delivered, of intellectual property counsel substantially similar to the Companyform attached hereto as Exhibit D; and (ii), in form and substance reasonably satisfactory to unless waived by the Applicable Placement Agents.
(g) The Placement Agents shall have received a negative assurance letterAgent, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory counsel to the Placement Agents, confirming that (i) they are independent public accountants with respect or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate is required pursuant to Section 7(v).
(h) On each date on which the Company within is required to deliver a certificate pursuant to Section 7(v), counsel for the meaning Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale 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 Securities 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 ofherein contemplated, or in exhibits order to evidence the accuracy of any of the representations or schedules towarranties, or the Registration Statementfulfillment of any of the conditions, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be contained in agreementthis Agreement.
(i) At the Closing Date, there The Placement Securities shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
either have been (i) (A) As approved for listing on Nasdaq Global Market, subject only to notice of the date of such certificateissuance, (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 the Company shall have filed an application for listing of the representations and warranties of the Company contained in this Agreement werePlacement Securities on Nasdaq Global Market at, 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 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 issuance 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 EffectPlacement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Sources: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Lead Placement Agents Agent and the Lead Placement Agents Agent did not object thereto in good faith on a timely basis, and the Placement Agents 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 Lead Placement Agents 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 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 Agents shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Lead Placement AgentsAgent, with respect to the matters set forth in Exhibit C hereto.
(f) The Placement Agents shall have received an opinionopinions, dated as of the Closing Date, of O’Melveny & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ and Crew, LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., each of which is intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Lead Placement AgentsAgent, with respect to the matters set forth in Exhibit D hereto.
(g) The Placement Agents 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 Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Lead Placement AgentsAgent 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 Agents have 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 Agents 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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) 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 the 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 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 respects.as 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;
(ivA) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has 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), (B) 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), and (C) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been instituted complied with to the satisfaction of the staff of the Commission or are contemplated by the Commission.such authorities; and
(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 shall be qualified for sale, if required, sale in such states as the Placement 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.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Lead Placement Agents 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 Agents.
(lk) The Shares Lead Placement Agent shall have received an executed “lock-up” agreement, in the form of Exhibit E hereto, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ relating to sales and Warrant Shares certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreement shall be eligible for trading, when issued, in full force and effect on the OTC Bulletin BoardClosing 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 Agents. The obligations of the Placement 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 and prior to the Closing 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 Agents and the Placement Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agents 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 Prospectusdate hereof, (i) there shall not have been a Material Adverse Effect, material adverse change whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement 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 reasonable judgment of the Placement 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 Prospectusdate hereof, 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 Agents shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, ▇▇▇▇O’Melveny & ▇▇▇▇▇ & ▇▇▇▇LLP, PLLC, as outside counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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 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 respectsrespects as if such representations and warranties were made on the Closing Date.
(iiiii) 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 withwith in all material respects.
(iviii) 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 described as being contemplated to the Company by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement 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 Placement Agents shall have furnished or caused to be furnished received executed “lock-up” agreements, each substantially in the form of Exhibit C hereto, from each of the Company’s officers who are subject to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date reporting requirements of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date Section 16(a) of the representations Securities Exchange Act of 1934 and warranties directors of the Company as relating to the performance by the Company sales and certain other dispositions of its obligations hereundershares of Common Stock or certain other securities, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(l) The Shares and Warrant Shares such lock-up agreements shall be eligible for trading, when issued, full force and effect on the OTC Bulletin BoardClosing 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 Agents. The obligations of the Placement 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 Agents and the Placement Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agents 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 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 Agents shall have received an opinion, dated as of the Closing Date, of WombleMintz, CarlyleLevin, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇Cohn, PLLCFerris, as Glovsky and Popeo, P.C., counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agents shall have received an opinion, dated as of the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit C hereto.
(g) The Placement Agents 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 Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC Accountants shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement AgentsAgents containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, confirming that (i) they are independent public accountants with respect 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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, 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 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 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.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(lk) The Shares Placement Agents shall have received executed “lock-up” agreements, each substantially in the form of Exhibit D hereto, from the executive officers and Warrant Shares directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be eligible for trading, when issued, in full force and effect on the OTC Bulletin BoardClosing 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 Agents. The obligations of the Placement Agents 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 Permitted Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agents MCF and the Placement Agents MCF did not object thereto in good faith on a timely basisfaith, and the Placement Agents MCF shall have received certificates of the Company, dated as of the Initial 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 Agents MCF 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 MCF, 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 as of each 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 such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Initial Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP with respect to the matters set forth in Exhibit F hereto.
(f) On the date hereof, LLC the Accountants shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”the "COMFORT LETTER"), addressed to the Placement Agents and in form and substance satisfactory to the Placement AgentsMCF, confirming that 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 AgentsMCF, or any increases in any items specified by the Placement AgentsMCF, 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 AgentsMCF, or any increases in any items specified by the Placement AgentsMCF, 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 AgentsMCF, 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 AgentsMCF, 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 Initial Closing Date, there shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents MCF 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 therein, in light of the circumstances under which they were made, 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 All the representations and warranties of the Company contained in this Agreement werethat are qualified as to materiality or Material Adverse Effect shall have been on the date hereof and shall be as of the Initial Closing Date, when originally made, as if made on and are, at as of the time such certificate is deliveredInitial Closing Date, true and correct complete in all respects, and all the representations and warranties of the Company contained in this Agreement that are not qualified as to materiality or Material Adverse Effect shall have been true and complete in all material respectsrespects on the date hereof and shall be true and complete in all material respects as of the Initial Closing Date, provided, however, that any representation or warranty of the Company in this Agreement made only as of some date other than the date hereof shall have been true and complete only as of such other 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 or other order suspending the effectiveness of the Registration Statement Statement, or any part thereof, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any part thereof jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 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.
(vi) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jh) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agents MCF may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on any Closing Date with respect to the Closing Date; sale of the Offered Securities in such state or states, 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 subjectfor herein.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agents such a customary certificate of the Company's Secretary, as well as certificates, in addition to those specifically mentioned herein, as the Placement Agents MCF may have reasonably and timely requested as to the accuracy and completeness at the Initial Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Initial 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 Agents.
(lj) The Shares and Warrant Shares shall be eligible for trading, when issued, on the OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million MCF shall have been issued received the agreements referred to in Section 3(oo) and sold under (pp) hereof substantially in the Registration Statement in connection with the Offeringform of Exhibits D and E hereto.
Appears in 1 contract
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, or in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of the Registration Statement, it will not contain any Issuer Free Writing Prospectus materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Prospectus shall have been filed unless statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a copy thereof was first submitted material fact or omit to state any material fact required to be stated therein or necessary to make the Placement Agents and statements therein, in the Placement Agents did light of the circumstances under which they were made, not object thereto in good faith on a timely basis, and the misleading
(d) The Placement Agents shall not have received certificates advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the CompanyPlacement Agents’ reasonable opinion is material, dated as of or omits to state a fact that in the Closing Date Placement Agents’ opinion is material and signed by is required to be stated therein or is necessary to make 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)statements therein not misleading.
(be) Since the respective dates Except as of which information is given contemplated in the Registration Statement and the Prospectus, (i) or disclosed in the Company’s reports filed with the Commission, there shall not have been a Material Adverse Effectany material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, 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 Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(cf) Since Unless waived by the respective dates as of which information is given in Applicable Placement Agent, the Registration Statement and the Prospectus, there Applicable Placement Agent 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 Datereceived, as if made on such date, and all covenants and agreements herein contained required to be performed delivered pursuant to Section 7 on or before the part date on which delivery of such opinion is required pursuant to Section 7(v), the Company and all conditions herein contained opinions, addressed 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 such Applicable Placement Agents shall have received an opinion, dated as of the Closing DateAgent, of Womble, Carlyle, (i) Eversheds ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇(US) LLP, PLLCcorporate counsel for the Company, as or other counsel satisfactory to the Companysuch Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agents.
(f) The Placement Agents shall have received an opinionAgent and their counsel, dated as of the Closing Datedate that the opinion is required to be delivered, of intellectual property counsel substantially similar to the Companyform attached hereto as Exhibit D; and (ii), in form and substance reasonably satisfactory to the Placement Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory counsel to the Placement Agents, confirming that (i) they are independent public accountants with respect or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate is required pursuant to Section 7(v).
(h) On each date on which the Company within is required to deliver a certificate pursuant to Section 7(v), counsel for the meaning Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale 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 Securities 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 ofherein contemplated, or in exhibits order to evidence the accuracy of any of the representations or schedules towarranties, or the Registration Statementfulfillment of any of the conditions, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be contained in agreementthis Agreement.
(i) At the Closing Date, there The Placement Securities shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
either have been (i) (A) As approved for listing on Nasdaq Global Market, subject only to notice of the date of such certificateissuance, (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 the Company shall have filed an application for listing of the representations and warranties of the Company contained in this Agreement werePlacement Securities on Nasdaq Global Market at, 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 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 issuance 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 EffectPlacement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Sources: Equity Distribution Agreement (Newtek Business Services Corp.)