Representations and Warranties of the Company and its Subsidiaries Sample Clauses: 120 Samples

Representations and Warranties of the Company and its Subsidiaries. The Company and its subsidiaries represent and warrant to, and agree with, the Placement Agents and the Purchasers that: (a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form (Registration File No. 333-107822), which became effective as of August 21, 2003, for the registration under the Securities Act of the Stock. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus included in such registration statement relating to the placement of the Stock and the plan of distribution thereof and has advised the Representative of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called a “Prospectus Supplement.” Any reference herein to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge, is threatened by the Commission. (b) The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading. Notwithstanding the foregoing, the Company makes no representations or warranties as to information, if any, contained in or omitted from the Prospectus Supplement or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Placement Agent specifically for use in the Registration Statement or the Prospectus Supplement, which information the parties hereto agree is limited to the Placement Agents’ Information as defined in Section 15. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that have not been filed as required pursuant to the Securities Act or will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required. (c) The Company has delivered, or will as promptly as practicable deliver, to the Representative complete conformed copies of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Representative reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Stock other than the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act. (d) The Company and each of its subsidiaries have been duly organized and are validly existing as corporations or other legal entities in good standing (or the equivalent thereof, if any) under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing (or the equivalent thereof, if any) as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified and in good standing or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”). Emerald Gene Systems, Ltd. (“Emerald”) is a majority-owned subsidiary of the Company, which was formed with Elan International Services, Ltd., a wholly-owned subsidiary of Elan Corporation plc. Emerald has no material assets and no operating activities. Any reference to the subsidiaries of the Company does not include Emerald. (e) The Stock to be issued and sold by the Company hereunder and under the Subscription Agreements has been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and nonassessable and free of any preemptive or similar rights. The Stock conforms to the description thereof contained in the Base Prospectus and the Prospectus Supplement. (f) The Company has an authorized capitalization as set forth in the Base Prospectus and the Prospectus Supplement, all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with federal and state securities laws, and conform to the description thereof contained in the Base Prospectus and the Prospectus Supplement. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries that have been granted by the Company other than those accurately described in the Base Prospectus and the Prospectus Supplement. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the Base Prospectus and the Prospectus Supplement accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights. (g) All the outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Base Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, defect or restriction upon voting or transfer or any other claim of any kind (“Liens”). (h) The Company has the full right, power and authority to enter into this Agreement and each of the Subscription Agreements and to perform and to discharge its obligations hereunder and thereunder; and each of this Agreement and each of the Subscription Agreements has been duly authorized, executed and delivered by the Company, and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity, regardless of whether asserted in a proceeding at equity or law. (i) The execution, delivery and performance of this Agreement and the Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute, law, rule or regulation or any judgment, order or decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; except for such breach or violation that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (j) There is no franchise, contract, lease, instrument or other document of a character required by the Securities Act or the Rules and Regulations to be described in the Base Prospectus and the Prospectus Supplement, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and all statements summarizing any such franchises, contracts, leases, instruments or other documents or legal matters contained in the Registration Statement are accurate and complete in all material respects. Other than as described in the Base Prospectus and the Prospectus Supplement, no such franchise, contract, lease, instrument or other document has been suspended or terminated for convenience or default by the Company or any of the other parties thereto, and the Company has not received notice or any other knowledge of any such pending or threatened suspension or termination, except for such pending or threatened suspensions or terminations that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (k) All existing minute books of the Company and each of its subsidiaries, including all existing records of all meetings and actions of the board of directors (including, Audit, Compensation and Nomination/Corporate Governance Committees) and stockholders of the Company through the date of the latest meeting and action (collectively, the “Corporate Records”) have been made available to the Placement Agents and counsel for the Placement Agents. All such Corporate Records are complete and accurately reflect, in all material respects, all transactions referred to in such Corporate Records. (l) No consent, approval, authorization, filing with or order of or registration with, any court or governmental agency or body is required in connection with the transactions contemplated herein and in the Subscription Agreements, except such as have been obtained or made under the Securities Act or the Exchange Act and such as may be required under the securities, or blue sky, laws of any jurisdiction in connection with the offer and sale of the Stock by the Company in the manner contemplated herein and in the Base Prospectus and the Prospectus Supplement. (m) Except for Elan International Services, Inc. who may not have received timely notice pursuant to the Registration Rights Agreement dated as of July 21, 1999, or as described in the Base Prospectus and the Prospectus Supplement, no person or entity has the right to require registration of shares of Common Stock or other securities of the Company because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right or who have been given timely and proper notice and have failed to exercise such right within the time or times required under the terms and conditions of such right. (n) The financial statements, together with the related notes and schedules, of the Company included in the Base Prospectus, the Prospectus Supplement or the Registration Statement, or incorporated by reference therein, as the case may be, present fairly the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the pe

Appears in 1 contract

Sources: Placement Agent Agreement (Targeted Genetics Corp /Wa/)

Representations and Warranties of the Company and its Subsidiaries. The Company represents and ~~its subsidiaries represent and warrant~~ warrants to, and ~~agree~~ agrees with, the Placement Agents and the Purchasers that: (a) The Company is a "foreign private issuer" (as defined in Rule 405 under the Securities Act) and meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form (Registration File No. 333-107822), which became effective as of August 21, 2003, for the registration under the Securities Act of the Stock. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) F-10 under the Securities Act and ~~complies with said Rule. The Company will file with~~ is eligible for the ~~Commission pursuant to Rule 424(b)~~ use of a short form prospectus, the Shelf Procedures and the MJDS provided under the Canadian Securities ~~Act~~Laws; a Final Receipt has been obtained from the Canadian Commissions in respect of the Canadian Base Prospectus, and no order suspending the ~~rules and regulations (the “Rules and Regulations”)~~ trading or distribution of the ~~Commission promulgated thereunder~~Shares has been issued by the Canadian Commissions and no proceedings, ~~a supplement~~ for that purpose, have been instituted or are pending or, to the form of prospectus included in such registration statement relating to the placement of the Stock and the plan of distribution thereof and has advised the Representative of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statementCompany's knowledge, ~~including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “Registration Statement”~~are contemplated by any Canadian Commissions; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called a “Prospectus Supplement.” Any reference herein to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. No no stop order suspending the effectiveness of the Registration Statement ~~or the use of the Base Prospectus or the Prospectus Supplement~~ has been ~~issued,~~ issued by the Commission and no ~~proceeding~~ proceedings for ~~any such~~ that purpose is have been instituted or are pending or ~~has been initiated or,~~ to the Company’s 's knowledge, ~~is threatened~~ are contemplated by the Commission; the Registration Statement, including a U.S. Base Prospectus and such amendments to such Registration Statement as may have been required to the date of this Agreement, has been prepared by the Company under the provisions of the Securities Act and has been filed with the Commission; pursuant to Rule 467(a) under the Securities Act, the Registration Statement became effective on October 24, 2003 (the "Effective Date"); copies of the Registration Statement, including amendments thereof, have been delivered to the Placement Agents, other than the Canadian Prospectus Supplement and U.S. Prospectus Supplement, which will be filed as required by applicable law; on the Closing Date, there will be no reports or information that, in accordance with the requirements of the Canadian Securities Laws, must be filed or made publicly available in connection with the listing of the Shares on the Toronto Stock Exchange ("TSX") (other than routine post-closing filings) that have not been filed or made publicly available as required, other than the Canadian Prospectus Supplement and U.S. Prospectus Supplement, which will be filed as required by applicable law; there are no documents required to be filed with the Canadian Commissions in connection with the Canadian Base Prospectus, the Canadian Prospectus Supplement or the Canadian Prospectus that have not been filed as required. (b) ~~The Registration Statement (~~On the Effective Date, the date the Canadian Prospectus Supplement is first filed with the Canadian Commissions and ~~any further documents to be~~ the date the U.S. Prospectus Supplement is first filed with the Commission, at all subsequent times through and including the Closing Date and prior to the expiry of the period of distribution of the Shares (A) ~~contains~~ the Canadian Prospectus, together with any Supplementary Material, did and will comply with the requirements of the Canadian Securities Laws pursuant to which it has been filed and did and will provide full, true and plain disclosure of all ~~exhibits~~ material facts (as defined in the Canadian Securities Laws) relating to the Company and ~~schedules~~ its Subsidiaries (as defined below) (taken as a whole) and to the Shares and did not and will not contain any misrepresentation (as defined in the Canadian Securities Laws), (B) the U.S. Prospectus did and will conform to the Canadian Prospectus except for such deletions or changes therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations (the "Rules and Regulations") of the Commission promulgated under the Securities Act~~. Each of~~ , (C) the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, (as amended or ~~supplemented~~as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto), ~~if applicable~~including the financial statements included therein, and the Form F-X did or will ~~not~~comply with all applicable provisions of the Securities Act, (D) the Registration Statement or any such amendment or supplement did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein ~~or necessary to make~~ and (E) the ~~statements therein not misleading. The Base~~ U.S. Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading~~. Notwithstanding~~ , provided however, that the ~~foregoing, the Company makes no~~ foregoing representations and warranties in this Section 2(b) do not apply to any statements or ~~warranties as to information, if any, contained in or omitted from the Prospectus Supplement or any amendment thereof or supplement thereto~~ omissions made in reliance ~~upon~~ on and in conformity with information solely relating to any Placement Agent and furnished in writing to the Company by ~~or on behalf~~ any of ~~any~~ the Placement ~~Agent~~ Agents specifically for ~~use~~ inclusion in the Registration ~~Statement~~ Statement, the U.S. Prospectus or the ~~Prospectus Supplement~~Canadian Prospectus, which information the parties hereto agree is limited to the Placement Agents’ ' Information as defined in Section 15. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that have not been filed as required pursuant to the Securities Act or will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required. (c) The Company has delivered, or will as promptly as practicable deliver, to the Representative complete conformed copies of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Representative reasonably requests. Neither ; neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the later of (i) the Closing ~~Date~~Date (as defined in Section 3 hereof) and (ii) the completion of the distribution of the Shares, any offering material in connection with the offering ~~and~~ or sale of the ~~Stock~~ Shares other than ~~the Base Prospectus, the Prospectus Supplement,~~ the Registration Statement, ~~copies of~~ the ~~documents incorporated by reference therein and any~~ U.S. Prospectus, the Canadian Prospectus or other ~~materials~~ materials, if any, permitted by the Securities ~~Act~~Act and the Canadian Securities Laws; the documents that are incorporated by reference in the Canadian Prospectus, when they were or are filed with the Canadian Commissions, conformed or will conform, respectively, in all material respects with the requirements of the Canadian Securities Laws, none of such documents contained or will contain any untrue statement of a material fact or omitted or will omit to state a material fact in order to make the statements therein not misleading. (dc) The Company has been continued and ~~each of its subsidiaries have been duly organized and are validly~~ is existing as ~~corporations or other legal entities in good standing (or the equivalent thereof, if any)~~ a corporation under the ~~laws of their respective jurisdictions of incorporation~~Canada Business Corporations Act (the "CBCA"), ~~are duly~~ with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectuses, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein. The Company is qualified to do business and ~~are~~ is in good standing ~~(or~~ in the ~~equivalent thereof~~Province of Ontario, ~~if any) as foreign corporations in each~~ such province being the only jurisdiction ~~in which their respective~~ where the ownership or ~~lease~~ leasing of ~~property~~ its properties or the conduct of ~~their respective businesses~~ its business requires such qualification~~, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged~~, except where the failure to be so qualified and in good standing ~~or have such power or authority~~ would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its ~~subsidiaries~~ Subsidiaries taken as a whole (a “"Material Adverse Effect”"). (d) The Company has no Subsidiaries other than those listed in Schedule 2(d). ~~Emerald Gene Systems~~Other than the capital stock of the Subsidiaries or as described in the Registration Statement and the Prospectuses, ~~Ltd. (“Emerald”) is a majority~~the Company does not own, directly or indirectly, any shares or any other equity or long-~~owned subsidiary~~ term debt securities of any corporation or have any equity interest in any firm, partnership, joint venture, association or other entity; complete and correct copies of the articles of incorporation and by-laws of the Company, ~~which was formed with Elan International Services~~including all amendments thereto, ~~Ltd.~~and complete and correct copies of the incorporating and governing documents of the Subsidiaries, ~~a wholly-owned subsidiary of Elan Corporation plc. Emerald has no material assets~~ including all amendments thereto, have been delivered to you, and no ~~operating activities. Any reference~~ changes therein will be made subsequent to the ~~subsidiaries~~ date hereof and prior to the Closing Date; the Subsidiaries have been incorporated and are existing as corporations or other legal entities under the laws of their respective jurisdictions of incorporation, with full power and authority to own, lease and operate their properties and to conduct their business as currently conducted or proposed to be conducted; the Subsidiaries are duly qualified to do business as foreign corporations in each jurisdiction where the ownership or leasing of their properties or the conduct of their business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect; all of the outstanding share capital or other equity interests of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company ~~does not include Emerald~~subject to no security interest, other encumbrance or adverse claims ("Liens"); and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into share capital or other equity interests in the Subsidiaries are outstanding. (e) The ~~Stock~~ Shares to be issued and sold by the Company hereunder and under the Subscription Agreements ~~has~~ have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and nonassessable and free of any preemptive or similar rights. The ~~Stock~~ share capital of the Company, including the Shares, conforms in all respects to the description thereof contained in the ~~Base Prospectus~~ Registration Statement and the ~~Prospectus Supplement~~Prospectuses; the certificates for the Shares are in due and proper form and conform to the requirements of the CBCA, the articles of incorporation of the Company and applicable requirements of the TSX and the National Association of Securities Dealers Automated Quotation National Market System ("Nasdaq") or have been otherwise approved by the TSX and Nasdaq; and the holders of the Shares will not be subject to personal liability by reason of being such holders. (f) The Company has an authorized capitalization as set forth in the ~~Base Prospectus~~ Registration Statement and the ~~Prospectus Supplement,~~ Prospectuses; all of the issued and outstanding ~~shares of~~ share capital ~~stock~~ of the ~~Company have~~ Company, including the Common Shares, has been duly authorized and validly ~~authorized~~ issued and ~~issued, are~~ is fully paid and non-~~assessable~~assessable and except as set forth in the Registration Statement and the Prospectuses and except for 952 deferred share units granted pursuant to the directors' deferred share unit and stock plan since November 30, 2004, and the issuance of 64,230 Common Shares upon the exercise of options, warrants or other rights since November 30, 2004, no options, deferred share units, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, share capital of the Company are outstanding except that since November 30, 2004, 56,340 options to purchase Common Shares granted pursuant to the Company's option plans have expired; the outstanding share capital of the Company has been issued in compliance with ~~federal~~ all federal, provincial and state securities ~~laws,~~ laws and ~~conform to~~ with the ~~description thereof contained in the Base Prospectus~~ rules of any exchange on which they trade and ~~the Prospectus Supplement. None of the outstanding shares of Common Stock~~ was not issued in violation of any preemptive ~~rights~~right, ~~rights~~ resale right, right of first refusal or ~~other~~ similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries that have been granted by the Company other than those accurately described in the Base Prospectus and the Prospectus Supplement. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the Base Prospectus and the Prospectus Supplement accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rightsright. (g) All the outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Base Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, defect or restriction upon voting or transfer or any other claim of any kind (“Liens”). (h) The Company has the full right, power and authority to enter into this Agreement and each of the Subscription Agreements and to perform and to discharge its obligations hereunder and thereunder; and each of this Agreement and each of the Subscription Agreements has been duly authorized, executed and delivered by the Company, and constitutes a valid and binding obligation of the Company enforceable in accordance with its ~~terms,~~ terms except as the enforcement thereof may be limited by ~~(i) applicable~~ bankruptcy, insolvency, reorganization, moratorium ~~and~~ or other similar laws ~~of general application~~ relating to or affecting the ~~enforcement~~ rights and remedies of ~~creditors’~~ creditors or by general equitable principles and to the extent that rights ~~generally, and (ii) general principles of equity, regardless of whether asserted in a proceeding at equity or~~ to indemnity may be limited by applicable law. (ih) The execution, delivery and performance of this Agreement and the Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its ~~subsidiaries~~ Subsidiaries is a party or by which the Company or any of its ~~subsidiaries~~ Subsidiaries is bound or to which any of the property or assets of the Company or any of its ~~subsidiaries~~ Subsidiaries is subject, nor will such actions result in any violation of the provisions of the ~~charter~~ articles of incorporation or by-laws of the Company or any of its ~~subsidiaries~~ Subsidiaries or any statute, law, rule or regulation or any judgment, order or decree of any court or governmental agency or body having jurisdiction over the Company or any of its ~~subsidiaries~~ Subsidiaries or any of their properties or assets~~; except for such breach or violation that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect~~. (ji) There is no franchise, contract, lease, instrument or other document of a character required by the Canadian Securities Laws or the Securities Act or and the Rules and Regulations to be described in the ~~Base Prospectus~~ Registration Statement and the ~~Prospectus Supplement~~Prospectuses, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and all statements summarizing any such franchises, contracts, leases, instruments or other documents or legal matters contained in the Registration Statement are accurate and complete in all material respects. Other than as described in the ~~Base Prospectus~~ Registration Statement and the ~~Prospectus Supplement~~Prospectuses, no such franchise, contract, lease, instrument or other document has been suspended or terminated for convenience or default by the Company or any of the other parties thereto, the Company has not sent or received any communication regarding intent not to renew any such franchise, contract, lease, instrument or other document, and the Company has not received notice or any other knowledge of any such pending or threatened ~~suspension~~ suspension, termination or ~~termination~~non-renewal, except for such pending or threatened ~~suspensions~~ suspensions, terminations or ~~terminations~~ non-renewals that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (kj) All existing minute books of the Company and each of its ~~subsidiaries~~Subsidiaries, including all existing records of all meetings and actions of the board of directors (including, Audit, ~~Compensation and~~ Compensation, Nomination/Corporate Governance ~~Committees~~and other board committees) and ~~stockholders~~ shareholders of the Company through the date of the latest meeting and action (collectively, the “"Corporate Records”") have been made available to the Placement Agents and counsel for the Placement Agents. All such Corporate Records are ~~complete and accurately reflect~~complete. There are no transactions, agreements or other actions of the Company that are required to be recorded in ~~all material respects, all transactions referred to~~ the Corporate Records that are not properly approved and/or recorded in ~~such~~ the Corporate Records. All filings have been made with Industry Canada in a timely fashion under the CBCA. (lk) No ~~consent,~~ approval, authorization, ~~filing with~~ consent or order of or ~~registration with~~filing with any federal, ~~any court~~ provincial, territorial, state, local or foreign governmental or regulatory commission, board, body, authority or agency ~~or body~~ is required in connection with the issuance and sale of the Shares or the consummation by the Company of the transactions contemplated ~~herein~~ hereby other than (i) registration of the offer and in sale of the ~~Subscription Agreements, except such as have been obtained or made~~ Shares under the Securities Act or and registration of the Shares under the Securities Exchange Act ~~and such~~ of 1934, as amended (the "Exchange Act"), which has been, or with respect to the final U.S. Prospectus Supplement will be, effected by the Company, (ii) as may be required under the ~~securities~~Canadian Securities Laws or by the TSX, which have been, or ~~blue sky~~with respect to the final Canadian Prospectus Supplement will be, ~~laws of~~ effected by the Company, (iii) any ~~jurisdiction in connection with~~ notices and filings required to be given to, or made with, the ~~offer~~ TSX and ~~sale of the Stock~~ Nasdaq, which have been or will be given or made on a timely basis by the Company and (iv) any necessary qualification, notices or filings under the securities or blue sky laws of the various U.S. state jurisdictions in which the Shares are being offered by the Placement Agents or under the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD"). For greater clarity, the distribution of the Shares to Purchasers resident in the ~~manner contemplated herein and in~~ United States has been qualified by the ~~Base~~ Canadian Prospectus ~~and the Prospectus Supplement~~under Canadian Securities Laws. (ml) Except ~~for Elan International Services, Inc. who may not have received timely notice pursuant to the Registration Rights Agreement dated as of July 21, 1999, or~~ as described in the ~~Base Prospectus~~ Registration Statement and the ~~Prospectus Supplement~~Prospectuses, (i) no person ~~or entity~~ has the ~~right to require registration of shares of Common Stock or other securities of the Company because of the filing or effectiveness of the Registration Statement~~ right, contractual or otherwise, ~~except for persons and entities who have expressly waived such right or who have been given timely and proper notice and have failed~~ to ~~exercise such right within the time or times required under the terms and conditions of such right. (n) The financial statements, together with the related notes and schedules, of~~ cause the Company ~~included in the Base Prospectus, the Prospectus Supplement~~ to issue or ~~the Registration Statement,~~ sell to it any Common Shares or incorporated by reference therein, as the case may be, present fairly the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the pesha

Appears in 1 contract

Sources: Placement Agent Agreement (Vasogen Inc)

Representations and Warranties of the Company and its Subsidiaries. The Company represents and ~~its subsidiaries represent and warrant~~ warrants to, and ~~agree~~ agrees with, the Placement Agents ~~and the Purchasers~~ that: (a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “"Securities Act”"), and has filed with the Securities and Exchange Commission (the “"Commission”") a registration statement on such ~~Form~~ form (Registration File No. 333-~~107822~~111464), which became effective as of ~~August 21~~January 9, ~~2003~~2004, for the registration under the Securities Act of the Stock. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “"Rules and Regulations”") of the Commission promulgated thereunder, a supplement to the form of prospectus included in such registration statement relating to the placement of the Stock and the plan of distribution thereof and has advised the Representative of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “"Registration Statement”"; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “"Base Prospectus”"; and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called a “"Prospectus Supplement.” " Any reference ~~herein~~ in this Agreement to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “"Incorporated Documents”") pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference ~~herein~~ in this Agreement to the terms “"amend,~~” “~~" "amendment” " or “"supplement” " with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “"contained,~~” “~~" "included,~~” “~~" "described,~~” “~~" "referenced," "set forth” " or “"stated” " in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s 's knowledge, is threatened by the Commission. (b) The Registration Statement (and any further documents to be filed with the ~~Commission~~Commission on or prior to the Closing Date) contains all exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base Prospectus or Prospectus Supplement, in light of the circumstances under which they were made) not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements ~~therein~~ therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representations or warranties as to information, if any, contained in or omitted from the Prospectus Supplement or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Placement Agent specifically for use in the Registration Statement or the Prospectus Supplement, which information the parties hereto agree is limited to the Placement Agents’ ' Information as defined in Section 15. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required. (c) The Company has delivered, or will as promptly as practicable deliver, to the Representative a complete conformed ~~copies~~ copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and such conformed copies of the Registration Statement (without exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Representative reasonably requests. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale of the Stock other than the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities Act. (d) The Company and ~~each of~~ its ~~subsidiaries~~ Significant Subsidiary (as defined below) have been duly organized and are validly existing as corporations or other legal entities in good standing (or the equivalent thereof, if any) under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing (or the equivalent thereof, if any) as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified and in good standing or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (a “"Material Adverse Effect”"). ~~Emerald Gene Systems~~The Company owns or controls, ~~Ltd.~~ directly or indirectly TSI Corporation, a Delaware corporation (~~“Emerald”)~~ the "Significant Subsidiary"), which is ~~a majority-owned subsidiary of~~ the Company~~, which was formed with Elan International Services, Ltd., a wholly~~'s only "significant subsidiary" within the meaning of Rule 1-~~owned subsidiary~~ 02(w) of ~~Elan Corporation plc. Emerald has no material assets and no operating activities. Any reference to the subsidiaries of the Company does not include Emerald.~~Regulation S-X. (e) The Stock to be issued and sold by the Company hereunder and under the Subscription Agreements has been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and nonassessable and free of any preemptive or similar rights. The Stock conforms to the description thereof contained in the Base Prospectus and the Prospectus Supplement. (f) The Company has an authorized capitalization as set forth in the Base Prospectus and the Prospectus Supplement~~, all~~ . All of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with federal and state securities laws, and conform to the description thereof contained in the Base Prospectus and the Prospectus Supplement. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries that have been granted by the Company other than those ~~accurately described~~ referenced in the Base Prospectus and the Prospectus Supplement. The description of the Company’s 's stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the Base Prospectus and the Prospectus Supplement accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights. (g) All the outstanding shares of capital stock of ~~each subsidiary~~ the Significant Subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Base Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, defect or restriction upon voting or transfer or any other claim of any kind (“"Liens”"). (h) The Company has the full right, power and authority to enter into this Agreement and each of the Subscription Agreements and to perform and to discharge its obligations hereunder and thereunder; and each of this Agreement and each of the Subscription Agreements has been duly authorized, executed and delivered by the Company, and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the enforcement of creditors’ ' rights generally, ~~and~~ (ii) general principles of equity, regardless of whether asserted in a proceeding at equity or law, and except to the extent that the indemnification and contribution provisions of Section 7 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof. (i) The execution, delivery and performance of this Agreement and the Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or ~~any of~~ its ~~subsidiaries~~ Significant Subsidiary is a party or by which the Company or ~~any of~~ its ~~subsidiaries~~ Significant Subsidiary is bound or to which any of the property or assets of the Company or ~~any of~~ its ~~subsidiaries~~ Significant Subsidiary is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or ~~any of~~ its ~~subsidiaries~~ Significant Subsidiary or any statute, law, rule or regulation or any judgment, order or decree of any court or governmental agency or body having jurisdiction over the Company or ~~any of~~ its ~~subsidiaries~~ Significant Subsidiary or any of their properties or assets; , except for such ~~breach~~ breach, violation or ~~violation that would not reasonably be expected to~~default that, singularly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (j) There is no franchise, contract, lease, instrument or other document of a character required by the Securities Act or the Rules and Regulations to be described in the Base Prospectus and the Prospectus Supplement, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and all statements summarizing any such franchises, contracts, leases, instruments or other documents ~~or legal matters~~ contained in the Registration Statement ~~are accurate and complete in all material respects~~fairly present the information required to be shown with respect thereto. Other than as described in the Base Prospectus and the Prospectus Supplement, no such franchise, contract, lease, instrument or other document has been suspended or terminated for convenience or default by the Company or any of the other parties thereto, and the Company has not received notice or any other knowledge of any such pending or threatened suspension or termination, except for such pending or threatened suspensions or terminations that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (k) All existing minute books of the Company and ~~each of~~ its ~~subsidiaries~~Significant Subsidiary, including all existing records of all meetings and actions of the board of directors (including, Audit, ~~Compensation~~ Compensation, Nominating and ~~Nomination/Corporate~~ Governance ~~Committees~~and other board committees) and stockholders of the Company through the date of the latest meeting and action (collectively, the “"Corporate Records”") have been made available to the Placement Agents and counsel for the Placement Agents. All such Corporate Records are complete and accurately reflect, in all material respects, all transactions referred to in such Corporate Records. (l) No consent, approval, authorization, filing with or order of or registration with, any court or governmental agency or body is required in connection with the transactions contemplated herein and in the Subscription Agreements, except such as have been obtained or made under the Securities Act or the Exchange Act and such as may be required under the securities, or blue sky, laws of any jurisdiction in connection with the offer and sale of the Stock by the Company in the manner contemplated herein and in the Base Prospectus and the Prospectus Supplement. (m) Except ~~for Elan International Services, Inc. who may not have received timely notice pursuant to the Registration Rights Agreement dated as of July 21, 1999, or~~ as described in the Base Prospectus and the Prospectus Supplement, no person or entity has the right to require registration of shares of Common Stock or other securities of the Company because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right or who have been given timely and proper notice and have failed to exercise such right within the time or times required under the terms and conditions of such right~~. (n) The financial statements~~, ~~together with the related notes~~ and ~~schedules, of~~ the Company included in the Base Prospectus, the Prospectus Supplement or the Registration Statement, or incorporated by reference therein, as the case may be, present fairly the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and is not required to file any registration statement for the peregistration of any securities of any

Appears in 1 contract

Sources: Placement Agent Agreement (GTC Biotherapeutics Inc)

Representations and Warranties of the Company and its Subsidiaries. (I) The Company represents and ~~its subsidiaries represent~~ warrants to and ~~warrant to~~agrees with the Underwriters, as of the date hereof, as of the Closing Date (as defined in Section 3 below) and ~~agree with, the Placement Agents and the Purchasers~~ as of each Additional Closing Date (as defined in Section 3 below) that: (a) The Company is a “foreign private issuer” (as defined in Rule 405 under the Securities Act) and meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form (Registration File No. 333-107822), which became effective as of August 21, 2003, for the registration under the Securities Act of the Stock. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) F-10 under the Securities Act and ~~complies with said Rule. The Company will file with~~ is eligible for the ~~Commission pursuant to Rule 424(b)~~ use of a short form prospectus, the Shelf Procedures and the MJDS provided under the Canadian Securities ~~Act~~Laws; a Final Receipt has been obtained from the OSC in respect of the Canadian Base Prospectus, and no order suspending the ~~rules and regulations (the “Rules and Regulations”)~~ trading or distribution of the ~~Commission promulgated thereunder~~Shares has been issued by the OSC and no proceedings, ~~a supplement~~ for that purpose, have been instituted or are pending or, to the ~~form of prospectus included in such registration statement relating to~~ Company’s knowledge, are contemplated by the placement of the Stock and the plan of distribution thereof and has advised the Representative of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “Registration Statement”OSC; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called a “Prospectus Supplement.” Any reference herein to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be. No no stop order suspending the effectiveness of the Registration Statement ~~or the use of the Base Prospectus or the Prospectus Supplement~~ has been ~~issued,~~ issued by the Commission and no ~~proceeding~~ proceedings for ~~any such~~ that purpose is have been instituted or are pending or ~~has been initiated or,~~ to the Company’s knowledge, ~~is threatened~~ are contemplated by the Commission; the Registration Statement, including a U.S. Base Prospectus and such amendments to such Registration Statement as may have been required to the date of this Agreement, has been prepared by the Company under the provisions of the Securities Act and has been filed with the Commission; pursuant to Rule 467(b) under the Securities Act, the Registration Statement became effective on December 1, 2010 (the “Effective Date”); copies of the Registration Statement, including amendments thereof, have been delivered to the Underwriters, other than the Canadian Prospectus Supplement and U.S. Prospectus Supplement, which will be filed as required by applicable law; on the Closing Date and any Additional Closing Date, there will be no reports or information that, in accordance with the requirements of the Canadian Securities Laws, must be filed or made publicly available in connection with the listing of the Shares on the Toronto Stock Exchange (“TSX”) or on the NYSE Amex (“NYSE AMEX”) (other than routine post-closing filings) that have not been filed or made publicly available as required, other than the Canadian Prospectus Supplement and U.S. Prospectus Supplement, which will be filed as required by applicable law; there are no documents required to be filed with the OSC in connection with the Canadian Base Prospectus, the Canadian Prospectus Supplement or the Canadian Prospectus that have not been filed as required. (b) ~~The Registration Statement (~~On the Effective Date, the date the Canadian Prospectus Supplement is first filed with the OSC and ~~any further documents to be~~ the date the U.S. Prospectus Supplement is first filed with the Commission, at all subsequent times through and including the Closing Date, any Additional Closing Date and prior to the expiry of the period of distribution of the Shares (A) ~~contains~~ the Canadian Prospectus, together with any Supplementary Material, as of the date thereof, did and will comply with the requirements of the Canadian Securities Laws pursuant to which it has been filed and did and will provide full, true and plain disclosure of all ~~exhibits~~ material facts (as defined in the Canadian Securities Laws) relating to the Company and ~~schedules~~ its subsidiaries (as defined in Section 15 below) (taken as a whole) and to the Shares and did not and will not contain any misrepresentation (as defined in the Canadian Securities Laws), (B) the U.S. Prospectus did and will conform to the Canadian Prospectus except for such deletions or changes therefrom and additions thereto as are permitted or required by Form F-10 and the ~~Securities Act. Each of~~ Rules and Regulations, (C) the Registration Statement (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto), including the financial statements included therein, and ~~any post~~the Form F-~~effective amendment thereto~~X did, ~~at the time it became effective~~and will, ~~complied~~ comply in all material respects with all applicable provisions of the Securities ~~Act and~~ Act, (D) the ~~Exchange Act and the applicable Rules and Regulations and~~ Registration Statement or any such amendment or supplement did not ~~and, as amended or supplemented, if applicable,~~ and will ~~not,~~ not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein ~~or necessary to make~~ and (E) the ~~statements therein not misleading. The Base~~ U.S. Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading~~. Notwithstanding~~ , provided however, that the ~~foregoing, the Company makes no~~ foregoing representations and warranties in this Section 2(I)(b) do not apply to any statements or ~~warranties as to information, if any, contained in or omitted from the Prospectus Supplement or any amendment thereof or supplement thereto~~ omissions made in reliance ~~upon~~ on and in conformity with information solely relating to any Underwriter and furnished in writing to the Company by ~~or on behalf~~ any of ~~any Placement Agent~~ the Underwriters specifically for ~~use~~ inclusion in the Registration ~~Statement~~ Statement, the U.S. Prospectus or the ~~Prospectus Supplement~~Canadian Prospectus, which information the parties hereto agree is limited to the ~~Placement Agents~~Underwriters’ Information as defined in Section 15. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that have not been filed as required pursuant to the Securities Act or will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required. (c) The Company has delivered, or will as promptly as practicable deliver, to the Representative complete conformed copies of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the Representative reasonably requests. Neither 17; neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the later of (i) the Closing ~~Date~~Date (as defined in Section 3 hereof) and any Additional Closing Date (as defined in Section 3 hereof) and (ii) the completion of the distribution of the Shares, any offering material in connection with the offering ~~and~~ or sale of the ~~Stock~~ Shares other than ~~the Base Prospectus, the Prospectus Supplement,~~ the Registration Statement, ~~copies of~~ the U.S. Prospectus, the Canadian Prospectus, or other materials, if any, permitted by the Securities Act and the Canadian Securities Laws; the documents that are incorporated by reference in the Canadian Prospectus, when they were or are filed with the OSC, conformed or will conform, respectively, in all material respects with the requirements of the Canadian Securities Laws, and none of such documents contained or will contain any untrue statement of a material fact or omitted or will omit to state a material fact in order to make the statements therein not misleading. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and ~~any other materials permitted by~~ manner required under Rules 163(b) and 433(d) under the Securities Act. (dc) ~~The Company~~ Except for the omission of the Shelf Information as of the Applicable Time (as defined below), as of the Applicable Time and ~~each~~ as of ~~its subsidiaries have been duly organized~~ the Closing Date and ~~are validly existing~~ any Additional Closing Date neither (i) the General Use Free Writing Prospectus(es) (as ~~corporations or other legal entities in good standing (or the equivalent thereof~~defined below), if any~~) under~~ , issued at or prior to the ~~laws of their respective jurisdictions of incorporation~~Applicable Time, ~~are duly qualified to do business~~ and ~~are in good standing~~ the Pricing Prospectus (~~or the equivalent thereof~~as defined below), if any) as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified and in good standing or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”). Emerald Gene Systems, Ltd. (“Emerald”) is a majority-owned subsidiary of the Company, which was formed with Elan International Services, Ltd., a wholly-owned subsidiary of Elan Corporation plc. Emerald has no material assets and no operating activities. Any reference to the subsidiaries of the Company does not include Emerald. (e) The Stock to be issued and sold by the Company hereunder and under the Subscription Agreements has been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and nonassessable and free of any preemptive or similar rights. The Stock conforms to the description thereof contained in the Base Prospectus and the Prospectus Supplement. (f) The Company has an authorized capitalization as set forth in the Base Prospectus and the Prospectus Supplement, all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, have been issued in compliance with federal and state securities laws, and conform to the description thereof contained in the Base Prospectus and the Prospectus Supplement. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries that have been granted by the Company other than those accurately described in the Base Prospectus and the Prospectus Supplement. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the Base Prospectus and the Prospectus Supplement accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights. (g) All the outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Base Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, defect or restriction upon voting or transfer or any other claim of any kind (“Liens”). (h) The Company has the full right, power and authority to enter into this Agreement and each of the Subscription Agreements and to perform and to discharge its obligations hereunder and thereunder; and each of this Agreement and each of the Subscription Agreements has been duly authorized, executed and delivered by the Company, and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity, regardless of whether asserted in a proceeding at equity or law. (i) The execution, delivery and performance of this Agreement and the Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute, law, rule or regulation or any judgment, order or decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; except for such breach or violation that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (j) There is no franchise, contract, lease, instrument or other document of a character required by the Securities Act or the Rules and Regulations to be described in the Base Prospectus and the Prospectus Supplement, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and all statements summarizing any such franchises, contracts, leases, instruments or other documents or legal matters contained in the Registration Statement are accurate and complete in all material respects. Other than as described in the Base Prospectus and the Prospectus Supplement, no such franchise, contract, lease, instrument or other document has been suspended or terminated for convenience or default by the Company or any of the other parties thereto, and the Company has not received notice or any other knowledge of any such pending or threatened suspension or termination, except for such pending or threatened suspensions or terminations that would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect. (k) All existing minute books of the Company and each of its subsidiaries, including all existing records of all meetings and actions of the board of directors (including, Audit, Compensation and Nomination/Corporate Governance Committees) and stockholders of the Company through the date of the latest meeting and action considered together (collectively, the “~~Corporate Records~~General Disclosure Package”), nor (ii) ~~have~~ any individual Limited Use Free Writing Prospectus (as defined below), nor (iii) the bona fide electronic road show (as defined in Rule 433(h)(5) under the Rules and Regulations), if any, that has been made available without restriction to ~~the Placement Agents and counsel for the Placement Agents. All such Corporate Records are complete and accurately reflect~~any person, ~~in all material respects~~if any, all transactions referred to in such Corporate Records. (l) No consent, approval, authorization, filing with or order of or registration with, any court or governmental agency or body is required in connection with the transactions contemplated herein and in the Subscription Agreements, except such as have been obtained or made under the Securities Act or the Exchange Act and such as may be required under the securities, or blue sky, laws of any jurisdiction in connection with the offer and sale of the Stock by the Company in the manner contemplated herein and in the Base Prospectus and the Prospectus Supplement. (m) Except for Elan International Services, Inc. who may not have received timely notice pursuant to the Registration Rights Agreement dated as of July 21, 1999, or as described in the Base Prospectus and the Prospectus Supplement, no person or entity has the right to require registration of shares of Common Stock or other securities of the Company because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right or who have been given timely and proper notice and have failed to exercise such right within the time or times required under the terms and conditions of such right. (n) The financial statements, when considered together with the ~~related notes and schedules~~General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company ~~included~~ makes no representations or warranties as to information contained in ~~the Base~~ or omitted from any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to the ~~Prospectus Supplement~~ Company by or ~~the Registration Statement, or incorporated by reference~~ on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriters’ Information (as ~~the case may be, present fairly the financial condition, results of operations~~ defined in Section 17. As used in this paragraph (c) and ~~cash flows of the Company and its consolidated subsidiaries as of the dates and for the pe~~elsewhere in this Agreement:

Appears in 1 contract

Sources: Underwriting Agreement (Ym Biosciences Inc)

Common use of Representations and Warranties of the Company and its Subsidiaries Clause in Contracts