REPRESENTATIONS AND WARRANTIES OF IPEC. IPEC hereby -------------------------------------- represents and warrants to ▇▇▇▇▇▇▇▇ on the date hereof, on the Closing Date, on the date any Preferred Share is converted (each a "Conversion Date") and on each Warrant Exercise Date (as defined in Annex B hereto), except as disclosed in the Schedule of Disclosure attached hereto as Annex C, as follows: a. IPEC has been duly incorporated and is validly existing in good standing under the laws of Delaware, or, after the Closing Date if another entity has succeeded IPEC in accordance with the terms hereof, under the laws of one of the United States. b. The execution, delivery and performance of this Agreement (including the issuance of the Preferred Shares) and the Warrant by IPEC have been duly authorized by all requisite corporate action and no further consent or authorization of IPEC, its Board of Directors or its stockholders is required. This Agreement and the Warrant have been duly executed and delivered by IPEC and, when duly authorized, executed and delivered by ▇▇▇▇▇▇▇▇, will be valid and binding agreements enforceable against IPEC in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. c. IPEC has full corporate power and authority necessary to execute and deliver this Agreement and the Warrant and to perform its obligations hereunder (including the issuance of the Preferred Shares) and thereunder. d. No consent, approval, authorization or order of any court, governmental agency or other body is required for the execution and delivery by IPEC of this Agreement and the Warrant or the performance by IPEC of any of its obligations hereunder (including the issuance of the Preferred Shares) or thereunder. e. Neither the execution and delivery by IPEC of this Agreement and the Warrant nor the performance by IPEC of any of its obligations hereunder or thereunder: (1) violates, conflicts with, results in a breach of, or constitutes a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) under (A) the Certificate of Incorporation or by-laws of IPEC or any of its subsidiaries or any Certificate of Designation relating to any securities of IPEC or any of its subsidiaries, (B) any decree, judgment, order, law, treaty, rule, regulation or determination of which IPEC is aware (after due inquiry) of any court, governmental agency or body, or arbitrator having jurisdiction over IPEC or any of its subsidiaries or any of their respective properties or assets, (C) the terms of any bond, debenture, note or any other evidence of indebtedness, or any agreement, stock option or other similar plan, indenture, lease, mortgage, deed of trust or other instrument to which IPEC or any of its subsidiaries is a party, by which IPEC or any of its subsidiaries is bound, or to which any of the properties or assets of IPEC or any of its subsidiaries is subject, and which is material to IPEC and its subsidiaries as a whole, (D) the terms of any "lock- up" or similar provision of any underwriting or similar agreement to which IPEC or any of its subsidiaries is a party, or (E) any rules of the National Association of Securities Dealers, Inc. applicable to IPEC or the transactions contemplated hereby; or (2) results in the creation or imposition of any lien, charge or encumbrance upon (A) any Preferred Share, the Warrant, the Warrant Shares or any Converted Stock or (B) any of the properties or assets of IPEC or any of its subsidiaries. f. IPEC has validly reserved (i) 100,000 Preferred Shares for issuance pursuant to the terms hereof, (ii) 2,500,000 shares of Common Stock for issuance pursuant to the terms of this Agreement and the Certificate of Designation and (iii) 456,000 shares of Common Stock for issuance pursuant to the Warrant. When issued to ▇▇▇▇▇▇▇▇ against payment therefor in accordance with the terms of this Agreement, the Certificate of Designation or the Warrant, each share of Preferred Stock and Converted Stock: (1) will have been duly and validly authorized, duly and validly issued, fully paid and non-assessable; (2) will be free and clear of any security interests, liens, claims or other encumbrances; and (3) will not have been issued or sold in violation of any preemptive or other similar rights of the holders of any securities of IPEC. g. The Common Stock has been, and upon issuance the Warrant Shares and the Converted Stock will be, duly listed and admitted for trading on the Nasdaq National Market ("NASDAQ") or, if applicable, following the Closing Date, listed and registered on a national securities exchange (as defined in the United States Securities Exchange Act of 1934, as amended (the "Exchange Act")). IPEC satisfies all quantitative maintenance criteria of the NASDAQ. h. IPEC is a Reporting Issuer within the meaning of Regulation S. i. There is no pending or, to the best knowledge of IPEC, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over IPEC or any of its affiliates that would materially affect the execution by IPEC of, or the performance by IPEC of its obligations under this Agreement or the Warrant, provided, however, that the representations and warranties -------- ------- contained in this Section 3(i) shall not apply to any action, threatened action, suit, proceeding or investigation initiated by ▇▇▇▇▇▇▇▇. j. IPEC has timely filed all filings with the United States Securities and Exchange Commission (the "SEC") under the Securities Act (including, without limitation, the Registration Statement on Form S-3 (File No. 333-16287) filed on November 18, 1996 (the "November S-3")) or under Section 13(a) or 15(d) of the Exchange Act (each, an "SEC Filing") required to be filed by IPEC pursuant to such acts during the past twelve months and no SEC Filing at the time filed, or press release issued by IPEC containing information material to the business of IPEC as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading at the time of the public disclosure. k. Since the date of IPEC's most recent SEC Filing, there has not been, and IPEC is not aware of any development that would require an amendment to the November S-3 in order to permit public offers and sales of shares of Common Stock thereunder. The parties hereto acknowledge that (i) ▇▇▇▇▇▇▇▇ has neither requested of nor received from IPEC any non-public information relating to IPEC or the business affairs or business prospects of IPEC and (ii) without limiting ▇▇▇▇▇▇▇▇'▇ reliance on any of the representations, warranties, covenants and agreements of IPEC contained herein, ▇▇▇▇▇▇▇▇ assumes the risk that the knowledge of any of the non- public information described in proviso (i) of this Section 3(k) might have materially influenced ▇▇▇▇▇▇▇▇'▇ decision to enter into and perform this Agreement. IPEC is not aware of any development that might result in IPEC not satisfying all such quantitative maintenance criteria of the NASDAQ. The representations and warranties contained in this Section 3(k) shall not be required to be given in respect of any Conversion Date or Warrant Exercise Date. l. The offer and sale of the Preferred Shares, the Converted Stock, the Warrant and the Warrant Shares to ▇▇▇▇▇▇▇▇ pursuant to this Agreement and the Warrant will, subject to compliance by ▇▇▇▇▇▇▇▇ with the applicable representations and warranties contained in Section 4 hereof and with the applicable covenants and agreements contained in Section 6 hereof, be made in accordance with the provisions and requirements of Regulation S and any applicable state law. m. Neither IPEC nor any of its affiliates nor any person acting on its or their behalf has engaged or will engage in any Directed Selling Efforts with respect to the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares, and all such persons understand and have complied and will otherwise comply with the requirements of Regulation S. n. The transactions contemplated by this Agreement are not part of a plan or scheme on the part of IPEC, any of its affiliates or any person acting on its or their behalf, to evade the registration provisions of the Securities Act. o. IPEC has not issued, and after the date hereof, will not issue, any stop transfer order or other order impeding the sale and delivery of the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares issuable hereunder except for a stop order restricting the sale of any of the foregoing securities to any person in the United States or to or for the account or benefit of any U.S. person during an applicable Restricted Period or otherwise not in compliance with Regulation S. p. Neither IPEC nor any of its affiliates has offered to sell or sold any Common Stock or any securities convertible or exchangeable into or exercisable for Common Stock in reliance upon Regulation S at any time during the 12 months prior to the date of this Agreement; and there are no such outstanding convertible or exchangeable securities that have been offered or sold in reliance upon Regulation S, except, in each case the Warrant, the Warrant Shares, the Converted Stock and the Preferred Shares sold pursuant hereto. q. As of the date hereof, the authorized capital stock of IPEC consists of 50,000,000 shares of Common Stock, 3,500,000 shares of Class A Common Stock, par value $0.01 per share ("Class A Common Stock"), and 2,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred --------- Stock") of which 21,478 shares are authorized for each of the Series B-1, ----- B-2 and B-3 Preferred Stock ("Series B Preferred Stock") and 100,000 shares are authorized for Series C Convertible Preferred Stock. As of September 30, 1996, (i) 14,354,272 shares of Common Stock, 521,650 shares of Class A Common Stock and 57,723 shares of Series B Preferred Stock were issued and outstanding, (ii) 5,029,515 shares of Common Stock were reserved for issuance upon exercise of Class A Common Stock, outstanding stock options, convertible Preferred Stock, including the Series B Preferred Stock, warrants or other rights and (iii) 0 shares of Common Stock were held in the treasury of IPEC. All the outstanding shares of Common Stock are, and all shares which may be issued pursuant to stock options, warrants or other convertible rights will be, when issued and paid for in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights in respect thereof. As of the date hereof, except as set forth above, and except for shares of Common Stock or other securities issued upon conversion, exchange, exercise or purchase associated with the securities, options, warrants, rights and other instruments referenced above from September 30, 1996 to the date hereof, and except for shares of Common Stock related to option grants made after September 30, 1996 to the date hereof under IPEC's stock plans for employees, directors and consultants, not in excess of 29,000 shares in the aggregate, (i) no shares of capital stock or other voting securities of IPEC were outstanding, (ii) no equity equivalents, interests in the ownership or earnings of IPEC or other similar rights were outstanding and (iii) there were no existing options, warrants, calls, subscriptions or other rights or agreements or commitments relating to the capital stock of IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries to issue, transfer, sell or redeem any shares of capital stock, or other equity interest in, IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement or commitment.
Appears in 1 contract
Sources: Subscription Agreement (Integrated Process Equipment Corp)
REPRESENTATIONS AND WARRANTIES OF IPEC. IPEC hereby -------------------------------------- represents and warrants to ▇▇▇▇▇▇▇▇ on the date hereofSpeedFam that (a) IPEC is a corporation duly incorporated, on the Closing Date, on the date any Preferred Share is converted (each a "Conversion Date") and on each Warrant Exercise Date (as defined in Annex B hereto), except as disclosed in the Schedule of Disclosure attached hereto as Annex C, as follows:
a. IPEC has been duly incorporated and is validly existing and in good standing under the laws of Delaware, or, after the Closing Date if another entity State of California and has succeeded IPEC in accordance with the terms hereof, under corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (b) the laws of one of the United States.
b. The execution, execution and delivery and performance of this Agreement (including by IPEC and the issuance consummation by IPEC of the Preferred Shares) and the Warrant by IPEC transactions contemplated hereby have been duly authorized by all requisite necessary corporate action on the part of IPEC and no further consent other corporate proceedings on the part of IPEC are necessary to authorize this Agreement or authorization any of IPEC, its Board of Directors or its stockholders is required. This the transactions contemplated hereby; (c) this Agreement and the Warrant have has been duly executed and delivered by IPEC andand constitutes a legal, when duly authorized, executed and delivered by ▇▇▇▇▇▇▇▇, will be valid and binding agreements obligation of IPEC and, assuming this Agreement constitutes a legal, valid and binding obligation of SpeedFam, is enforceable against IPEC in accordance with their its terms, subject to bankruptcy, insolvency, reorganization, moratorium except as enforceability may be limited by bankruptcy and similar other laws affecting the rights and remedies of general applicability relating to or affecting creditors' rights creditors generally and to general principles of equity.
c. ; (d) upon delivery of IPEC has full corporate power and authority necessary Shares to execute and deliver this Agreement and the Warrant and to perform its obligations hereunder (including the issuance of the Preferred Shares) and thereunder.
d. No consent, approval, authorization or order SpeedFam in consideration of any courtacquisition of SpeedFam Shares pursuant hereto, governmental agency SpeedFam will acquire such IPEC Shares free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or other body is required for nature whatsoever, excluding those imposed by SpeedFam; (e) the execution and delivery by IPEC of this Agreement by IPEC do not, and the Warrant or the performance of this Agreement by IPEC will not, (i) violate the Articles of Incorporation or By-Laws of IPEC, (ii) conflict with or violate any order applicable to IPEC or any of its obligations hereunder (including the issuance of the Preferred Shares) subsidiaries or thereunder.
e. Neither the execution and delivery by IPEC of this Agreement and the Warrant nor the performance by IPEC of which they or any of its obligations hereunder their property is bound or thereunder:
affected or (1iii) violates, conflicts with, results result in a any breach of, of or constitutes constitute a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute become a default) under (A) the Certificate of Incorporation under, or by-laws of IPEC or any of its subsidiaries or any Certificate of Designation relating give rise to any securities right of IPEC termination, amendment, acceleration or any of its subsidiaries, (B) any decree, judgment, order, law, treaty, rule, regulation or determination of which IPEC is aware (after due inquiry) of any court, governmental agency or bodycancellation of, or arbitrator having jurisdiction over IPEC result in the creation of a lien or any of its subsidiaries or any of their respective properties or assets, (C) the terms of any bond, debenture, note or any other evidence of indebtedness, or any agreement, stock option or other similar plan, indenture, lease, mortgage, deed of trust or other instrument to which IPEC or any of its subsidiaries is a party, by which IPEC or any of its subsidiaries is bound, or to which encumbrance on any of the properties property or assets of IPEC or any of its subsidiaries is subjectpursuant to, and which is material to IPEC and its subsidiaries as a whole, (D) the terms of any "lock- up" contract or similar provision of any underwriting or similar agreement to which IPEC or any of its subsidiaries is a party, party or (E) any rules of the National Association of Securities Dealers, Inc. applicable to IPEC or the transactions contemplated hereby; or
(2) results in the creation or imposition of any lien, charge or encumbrance upon (A) any Preferred Share, the Warrant, the Warrant Shares or any Converted Stock or (B) any of the properties or assets of IPEC or any of its subsidiaries.
f. IPEC has validly reserved (i) 100,000 Preferred Shares for issuance pursuant to the terms hereof, (ii) 2,500,000 shares of Common Stock for issuance pursuant to the terms of this Agreement and the Certificate of Designation and (iii) 456,000 shares of Common Stock for issuance pursuant to the Warrant. When issued to ▇▇▇▇▇▇▇▇ against payment therefor in accordance with the terms of this Agreement, the Certificate of Designation or the Warrant, each share of Preferred Stock and Converted Stock:
(1) will have been duly and validly authorized, duly and validly issued, fully paid and non-assessable;
(2) will be free and clear of any security interests, liens, claims or other encumbrances; and
(3) will not have been issued or sold in violation of any preemptive or other similar rights of the holders of any securities of IPEC.
g. The Common Stock has been, and upon issuance the Warrant Shares and the Converted Stock will be, duly listed and admitted for trading on the Nasdaq National Market ("NASDAQ") or, if applicable, following the Closing Date, listed and registered on a national securities exchange (as defined in the United States Securities Exchange Act of 1934, as amended (the "Exchange Act")). IPEC satisfies all quantitative maintenance criteria of the NASDAQ.
h. IPEC is a Reporting Issuer within the meaning of Regulation S.
i. There is no pending or, to the best knowledge of IPEC, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over IPEC or any of its affiliates that would materially affect the execution by IPEC of, or the performance by IPEC of its obligations under this Agreement or the Warrant, provided, however, that the representations and warranties -------- ------- contained in this Section 3(i) shall not apply to any action, threatened action, suit, proceeding or investigation initiated by ▇▇▇▇▇▇▇▇.
j. IPEC has timely filed all filings with the United States Securities and Exchange Commission (the "SEC") under the Securities Act (including, without limitation, the Registration Statement on Form S-3 (File No. 333-16287) filed on November 18, 1996 (the "November S-3")) or under Section 13(a) or 15(d) of the Exchange Act (each, an "SEC Filing") required to be filed by IPEC pursuant to such acts during the past twelve months and no SEC Filing at the time filed, or press release issued by IPEC containing information material to the business of IPEC as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading at the time of the public disclosure.
k. Since the date of IPEC's most recent SEC Filing, there has not been, and IPEC is not aware of any development that would require an amendment to the November S-3 in order to permit public offers and sales of shares of Common Stock thereunder. The parties hereto acknowledge that (i) ▇▇▇▇▇▇▇▇ has neither requested of nor received from IPEC any non-public information relating to IPEC or the business affairs or business prospects of IPEC and (ii) without limiting ▇▇▇▇▇▇▇▇'▇ reliance on any of the representations, warranties, covenants and agreements of IPEC contained herein, ▇▇▇▇▇▇▇▇ assumes the risk that the knowledge of any of the non- public information described in proviso (i) of this Section 3(k) might have materially influenced ▇▇▇▇▇▇▇▇'▇ decision to enter into and perform this Agreement. IPEC is not aware of any development that might result in IPEC not satisfying all such quantitative maintenance criteria of the NASDAQ. The representations and warranties contained in this Section 3(k) shall not be required to be given in respect of any Conversion Date or Warrant Exercise Date.
l. The offer and sale of the Preferred Shares, the Converted Stock, the Warrant and the Warrant Shares to ▇▇▇▇▇▇▇▇ pursuant to this Agreement and the Warrant will, subject to compliance by ▇▇▇▇▇▇▇▇ with the applicable representations and warranties contained in Section 4 hereof and with the applicable covenants and agreements contained in Section 6 hereof, be made in accordance with the provisions and requirements of Regulation S and any applicable state law.
m. Neither IPEC nor any of its affiliates nor any person acting on its or their behalf has engaged or will engage in any Directed Selling Efforts with respect to the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares, and all such persons understand and have complied and will otherwise comply with the requirements of Regulation S.
n. The transactions contemplated by this Agreement are not part of a plan or scheme on the part of IPEC, any of its affiliates or any person acting on its or their behalf, to evade the registration provisions of the Securities Act.
o. IPEC has not issued, and after the date hereof, will not issue, any stop transfer order or other order impeding the sale and delivery of the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares issuable hereunder except for a stop order restricting the sale of any of the foregoing securities to any person in the United States or to or for the account or benefit of any U.S. person during an applicable Restricted Period or otherwise not in compliance with Regulation S.
p. Neither IPEC nor any of its affiliates has offered to sell or sold any Common Stock or any securities convertible or exchangeable into or exercisable for Common Stock in reliance upon Regulation S at any time during the 12 months prior to the date of this Agreement; and there are no such outstanding convertible or exchangeable securities that have been offered or sold in reliance upon Regulation S, except, in each case the Warrant, the Warrant Shares, the Converted Stock and the Preferred Shares sold pursuant hereto.
q. As of the date hereof, the authorized capital stock of IPEC consists of 50,000,000 shares of Common Stock, 3,500,000 shares of Class A Common Stock, par value $0.01 per share ("Class A Common Stock"), and 2,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred --------- Stock") of which 21,478 shares are authorized for each of the Series B-1, ----- B-2 and B-3 Preferred Stock ("Series B Preferred Stock") and 100,000 shares are authorized for Series C Convertible Preferred Stock. As of September 30, 1996, (i) 14,354,272 shares of Common Stock, 521,650 shares of Class A Common Stock and 57,723 shares of Series B Preferred Stock were issued and outstanding, (ii) 5,029,515 shares of Common Stock were reserved for issuance upon exercise of Class A Common Stock, outstanding stock options, convertible Preferred Stock, including the Series B Preferred Stock, warrants or other rights and (iii) 0 shares of Common Stock were held in the treasury of IPEC. All the outstanding shares of Common Stock are, and all shares which may be issued pursuant to stock options, warrants or other convertible rights will be, when issued and paid for in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights in respect thereof. As of the date hereof, except as set forth above, and except for shares of Common Stock or other securities issued upon conversion, exchange, exercise or purchase associated with the securities, options, warrants, rights and other instruments referenced above from September 30, 1996 to the date hereof, and except for shares of Common Stock related to option grants made after September 30, 1996 to the date hereof under IPEC's stock plans for employees, directors and consultants, not in excess of 29,000 shares in the aggregate, (i) no shares of capital stock or other voting securities of IPEC were outstanding, (ii) no equity equivalents, interests in the ownership or earnings of IPEC or other similar rights were outstanding and (iii) there were no existing options, warrants, calls, subscriptions or other rights or agreements or commitments relating to the capital stock of IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries their property is bound or affected, except, in the case of clauses (ii) and (iii) above, for violations, conflicts, breaches, defaults, rights of termination, amendment, acceleration or cancellation, liens or encumbrances which would not, individually or in the aggregate, have a Material Adverse Effect on IPEC; (f) the execution and delivery of this Agreement by IPEC does not, and the performance of this Agreement by IPEC will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity by IPEC except pursuant to issue, transfer, the HSR Act or the Exchange Act; and (g) any SpeedFam Shares acquired upon exercise of the Option will not be acquired by IPEC with a view to the public distribution thereof and IPEC will not sell or redeem any otherwise dispose of such shares in violation of capital stock, applicable law or other equity interest in, IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement or commitmentthis Agreement.
Appears in 1 contract
Sources: Stock Option Agreement (Speedfam International Inc)
REPRESENTATIONS AND WARRANTIES OF IPEC. IPEC hereby -------------------------------------- represents and warrants to ▇▇▇▇▇▇▇▇ on the date hereofSpeedFam that (a) IPEC is a corporation duly organized, on the Closing Date, on the date any Preferred Share is converted (each a "Conversion Date") and on each Warrant Exercise Date (as defined in Annex B hereto), except as disclosed in the Schedule of Disclosure attached hereto as Annex C, as follows:
a. IPEC has been duly incorporated and is validly existing and in good standing under the laws of Delaware, or, after the Closing Date if another entity State of Delaware and has succeeded IPEC in accordance with the terms hereof, under corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (b) the laws of one of the United States.
b. The execution, execution and delivery and performance of this Agreement (including the issuance by IPEC and consummation by IPEC of the Preferred Shares) and the Warrant by IPEC transactions contemplated hereby have been duly authorized by all requisite necessary corporate action on the part of IPEC and no further consent other corporate proceedings on the part of IPEC are necessary to authorize this Agreement or authorization any of IPEC, its Board of Directors or its stockholders is required. This the transactions contemplated hereby; (c) this Agreement and the Warrant have has been duly executed and delivered by IPEC andand constitutes a legal, when duly authorized, executed and delivered by ▇▇▇▇▇▇▇▇, will be valid and binding agreements obligation of IPEC and, assuming this Agreement constitutes a legal, valid and binding obligation of SpeedFam, is enforceable against IPEC in accordance with their its terms, subject to bankruptcy, insolvency, reorganization, moratorium except as enforceability may be limited by bankruptcy and similar other laws affecting the rights and remedies of general applicability relating to or affecting creditors' rights creditors generally and to general principles of equity.
c. ; (d) except for any filings required under the HSR Act, IPEC has full taken all necessary corporate power and authority necessary other action to execute authorize and deliver this Agreement and the Warrant reserve for issuance and to perform its obligations hereunder (including the issuance permit it to issue upon exercise of the Preferred SharesOption, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued IPEC Shares for SpeedFam to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional IPEC Shares or other securities which may be issuable pursuant to Section 9(a) upon exercise of the Option, all of which, upon their issuance and thereunder.
d. No consentdelivery in accordance with the terms of this Agreement, approvalwill be validly issued, authorization fully paid and nonassessable; (e) upon delivery of the IPEC Shares and any other securities to SpeedFam upon exercise of the Option, SpeedFam will acquire such IPEC Shares or order other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any courtkind or nature whatsoever, governmental agency or other body is required for excluding those imposed by SpeedFam; (f) the execution and delivery by IPEC of this Agreement by IPEC do not, and the Warrant or the performance of this Agreement by IPEC will not, (i) violate the Certificate of Incorporation or By-Laws of IPEC, (ii) conflict with or violate any order applicable to IPEC or any of its obligations hereunder (including the issuance of the Preferred Shares) subsidiaries or thereunder.
e. Neither the execution and delivery by IPEC of this Agreement and the Warrant nor the performance by IPEC of which they or any of its obligations hereunder their property is bound or thereunder:
affected or (1iii) violates, conflicts with, results result in a any breach of, of or constitutes constitute a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute become a default) under (A) the Certificate of Incorporation under, or by-laws of IPEC or any of its subsidiaries or any Certificate of Designation relating give rise to any securities right of IPEC termination, amendment, acceleration or any of its subsidiaries, (B) any decree, judgment, order, law, treaty, rule, regulation or determination of which IPEC is aware (after due inquiry) of any court, governmental agency or bodycancellation of, or arbitrator having jurisdiction over IPEC result in the creation of a lien or any of its subsidiaries or any of their respective properties or assets, (C) the terms of any bond, debenture, note or any other evidence of indebtedness, or any agreement, stock option or other similar plan, indenture, lease, mortgage, deed of trust or other instrument to which IPEC or any of its subsidiaries is a party, by which IPEC or any of its subsidiaries is bound, or to which encumbrance on any of the properties property or assets of IPEC or any of its subsidiaries is subjectpursuant to, and which is material to IPEC and its subsidiaries as a whole, (D) the terms of any "lock- up" contract or similar provision of any underwriting or similar agreement to which IPEC or any of its subsidiaries is a party, party or (E) any rules of the National Association of Securities Dealers, Inc. applicable to IPEC or the transactions contemplated hereby; or
(2) results in the creation or imposition of any lien, charge or encumbrance upon (A) any Preferred Share, the Warrant, the Warrant Shares or any Converted Stock or (B) any of the properties or assets of IPEC or any of its subsidiaries.
f. IPEC has validly reserved (i) 100,000 Preferred Shares for issuance pursuant to the terms hereof, (ii) 2,500,000 shares of Common Stock for issuance pursuant to the terms of this Agreement and the Certificate of Designation and (iii) 456,000 shares of Common Stock for issuance pursuant to the Warrant. When issued to ▇▇▇▇▇▇▇▇ against payment therefor in accordance with the terms of this Agreement, the Certificate of Designation or the Warrant, each share of Preferred Stock and Converted Stock:
(1) will have been duly and validly authorized, duly and validly issued, fully paid and non-assessable;
(2) will be free and clear of any security interests, liens, claims or other encumbrances; and
(3) will not have been issued or sold in violation of any preemptive or other similar rights of the holders of any securities of IPEC.
g. The Common Stock has been, and upon issuance the Warrant Shares and the Converted Stock will be, duly listed and admitted for trading on the Nasdaq National Market ("NASDAQ") or, if applicable, following the Closing Date, listed and registered on a national securities exchange (as defined in the United States Securities Exchange Act of 1934, as amended (the "Exchange Act")). IPEC satisfies all quantitative maintenance criteria of the NASDAQ.
h. IPEC is a Reporting Issuer within the meaning of Regulation S.
i. There is no pending or, to the best knowledge of IPEC, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over IPEC or any of its affiliates that would materially affect the execution by IPEC of, or the performance by IPEC of its obligations under this Agreement or the Warrant, provided, however, that the representations and warranties -------- ------- contained in this Section 3(i) shall not apply to any action, threatened action, suit, proceeding or investigation initiated by ▇▇▇▇▇▇▇▇.
j. IPEC has timely filed all filings with the United States Securities and Exchange Commission (the "SEC") under the Securities Act (including, without limitation, the Registration Statement on Form S-3 (File No. 333-16287) filed on November 18, 1996 (the "November S-3")) or under Section 13(a) or 15(d) of the Exchange Act (each, an "SEC Filing") required to be filed by IPEC pursuant to such acts during the past twelve months and no SEC Filing at the time filed, or press release issued by IPEC containing information material to the business of IPEC as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading at the time of the public disclosure.
k. Since the date of IPEC's most recent SEC Filing, there has not been, and IPEC is not aware of any development that would require an amendment to the November S-3 in order to permit public offers and sales of shares of Common Stock thereunder. The parties hereto acknowledge that (i) ▇▇▇▇▇▇▇▇ has neither requested of nor received from IPEC any non-public information relating to IPEC or the business affairs or business prospects of IPEC and (ii) without limiting ▇▇▇▇▇▇▇▇'▇ reliance on any of the representations, warranties, covenants and agreements of IPEC contained herein, ▇▇▇▇▇▇▇▇ assumes the risk that the knowledge of any of the non- public information described in proviso (i) of this Section 3(k) might have materially influenced ▇▇▇▇▇▇▇▇'▇ decision to enter into and perform this Agreement. IPEC is not aware of any development that might result in IPEC not satisfying all such quantitative maintenance criteria of the NASDAQ. The representations and warranties contained in this Section 3(k) shall not be required to be given in respect of any Conversion Date or Warrant Exercise Date.
l. The offer and sale of the Preferred Shares, the Converted Stock, the Warrant and the Warrant Shares to ▇▇▇▇▇▇▇▇ pursuant to this Agreement and the Warrant will, subject to compliance by ▇▇▇▇▇▇▇▇ with the applicable representations and warranties contained in Section 4 hereof and with the applicable covenants and agreements contained in Section 6 hereof, be made in accordance with the provisions and requirements of Regulation S and any applicable state law.
m. Neither IPEC nor any of its affiliates nor any person acting on its or their behalf has engaged or will engage in any Directed Selling Efforts with respect to the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares, and all such persons understand and have complied and will otherwise comply with the requirements of Regulation S.
n. The transactions contemplated by this Agreement are not part of a plan or scheme on the part of IPEC, any of its affiliates or any person acting on its or their behalf, to evade the registration provisions of the Securities Act.
o. IPEC has not issued, and after the date hereof, will not issue, any stop transfer order or other order impeding the sale and delivery of the Preferred Shares, the Converted Stock, the Warrant or the Warrant Shares issuable hereunder except for a stop order restricting the sale of any of the foregoing securities to any person in the United States or to or for the account or benefit of any U.S. person during an applicable Restricted Period or otherwise not in compliance with Regulation S.
p. Neither IPEC nor any of its affiliates has offered to sell or sold any Common Stock or any securities convertible or exchangeable into or exercisable for Common Stock in reliance upon Regulation S at any time during the 12 months prior to the date of this Agreement; and there are no such outstanding convertible or exchangeable securities that have been offered or sold in reliance upon Regulation S, except, in each case the Warrant, the Warrant Shares, the Converted Stock and the Preferred Shares sold pursuant hereto.
q. As of the date hereof, the authorized capital stock of IPEC consists of 50,000,000 shares of Common Stock, 3,500,000 shares of Class A Common Stock, par value $0.01 per share ("Class A Common Stock"), and 2,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred --------- Stock") of which 21,478 shares are authorized for each of the Series B-1, ----- B-2 and B-3 Preferred Stock ("Series B Preferred Stock") and 100,000 shares are authorized for Series C Convertible Preferred Stock. As of September 30, 1996, (i) 14,354,272 shares of Common Stock, 521,650 shares of Class A Common Stock and 57,723 shares of Series B Preferred Stock were issued and outstanding, (ii) 5,029,515 shares of Common Stock were reserved for issuance upon exercise of Class A Common Stock, outstanding stock options, convertible Preferred Stock, including the Series B Preferred Stock, warrants or other rights and (iii) 0 shares of Common Stock were held in the treasury of IPEC. All the outstanding shares of Common Stock are, and all shares which may be issued pursuant to stock options, warrants or other convertible rights will be, when issued and paid for in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights in respect thereof. As of the date hereof, except as set forth above, and except for shares of Common Stock or other securities issued upon conversion, exchange, exercise or purchase associated with the securities, options, warrants, rights and other instruments referenced above from September 30, 1996 to the date hereof, and except for shares of Common Stock related to option grants made after September 30, 1996 to the date hereof under IPEC's stock plans for employees, directors and consultants, not in excess of 29,000 shares in the aggregate, (i) no shares of capital stock or other voting securities of IPEC were outstanding, (ii) no equity equivalents, interests in the ownership or earnings of IPEC or other similar rights were outstanding and (iii) there were no existing options, warrants, calls, subscriptions or other rights or agreements or commitments relating to the capital stock of IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries to issuetheir property is bound or affected, transferexcept, sell in the case of clauses (ii) and (iii) above, for violations, conflicts, breaches, defaults, rights of termination, amendment, acceleration or redeem any shares of capital stockcancellation, liens or other equity interest in, IPEC or any of its subsidiaries or obligating IPEC or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement or commitment.encumbrances which would not,
Appears in 1 contract
Sources: Stock Option Agreement (Integrated Process Equipment Corp)