Subsequent to the execution and delivery. of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii)(A) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of a majority in interest of the Initial Purchasers, including CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (C) any banking moratorium declared by U.S. Federal or New York authorities; or (D) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international 19 19 calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers, including CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities. (i) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Krug▇▇▇, ▇▇ap▇▇▇▇ & ▇rim▇▇▇▇, ▇▇unsel for the Company, to the effect that: (A) as of the Closing Date, such counsel have no reason to believe the Company's offering circular dated January 21, 1997 (the "Offering Circular") contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Offering Circular of legal and governmental proceedings and contracts are accurate in all material respects and in all material respects fairly describe such items (it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Document); (B) the Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole; (C) the Principal Subsidiary (as defined in the Offering Document) has been duly incorporated and is an existing corporation in 20 20 good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and such subsidiary is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole; all of the issued and outstanding capital stock of such subsidiary has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of such subsidiary owned by the Company is owned, to the best of such counsel's knowledge, free from liens, encumbrances and defects (except as disclosed in the Offering Document); (D) the Indenture and the Warrant Agreement have been duly authorized, executed and delivered by the Company; the Offered Securities have been duly authorized, executed, authenticated, issued and delivered and conform in all material respects to the description thereof contained in the Offering Document; and the Indenture, the Warrant Agreement and such Offered Securities constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity; (E) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and conforms in all material respects to the description thereof contained in the Offering Document, and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting 21 21 creditors' rights and to general principles of equity (except that no opinion need be expressed with respect to the indemnification or construction provisions contained therein); (F) the Warrants are convertible into the Underlying Shares of the Company in accordance with their terms; the Underlying Shares initially issuable upon conversion of such Warrants have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding Common Stock has been duly authorized and validly issued, is fully paid and nonassessable and conforms in all material respects to the description thereof contained in the Offering Document; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities or the Underlying Shares; (G) to such counsel's knowledge, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation by the Company of the transactions contemplated by the Operative Documents or in connection with the issuance and sale of the Offered Securities, except as may be required under the Securities Act with respect to the Registration Rights Agreement and the transactions contemplated thereunder; (H) to such counsel's knowledge, the execution, delivery and performance by the Company of the Operative Documents, and the consummation by the Company of the transactions contemplated thereby, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject except for such 22 22 breaches, violations or defaults that would not individually or in the aggregate result in a material adverse effect on the Company and its subsidiaries taken as a whole, or the charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement; (I) this Agreement has been duly authorized, executed and delivered by the Company; (J) to the knowledge of such counsel, the Company and the Principal Subsidiary possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them except for such certificates, authorities or permits failure to possess which would not, individually or in the aggregate, have a material adverse effect on the Company and the Principal Subsidiary taken as a whole and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that are reasonably likely individually or in the aggregate to have a material adverse effect on the Company and the Principal Subsidiary taken as a whole; and (K) to such counsel's knowledge, except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that are reasonably likely individually or in the aggregate to have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole, or would materially and adversely affect the ability of the Company to perform its obligations under the Operative Documents, or which are otherwise material in the context of the sale of the Offered Securities; and, to such counsel's knowledge, no such actions, suits or proceedings are threatened; respect to or under the Investment Company Act of 1940 or any Blue Sky laws or the registration requirements of the Securities Act, or any rules and regulations thereunder, or the effects of any such provision. (ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Hugh▇▇ ▇▇▇b▇▇▇ & ▇eed ▇▇▇, special counsel for the Company, to the effect that: (A) based upon and subject to certain assumptions, no securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as any of the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated interdealer quotation system; (B) as of the Closing Date, the statements contained in the Offering Circular in the second paragraph under the caption "Risk Factors--Use of Proceeds; Investment Company Act Considerations" and in the first sentence of the penultimate paragraph under such caption fairly describe in all material respects the matters discussed therein; (C) based upon and subject to certain assumptions and qualifications, the temporary exemption provided for in Section 3(b)(2) of the Investment Company Act exempts both companies that are investment companies within the meaning of paragraph (1) of Section 3(a) of the Investment Company Act and of paragraph (3) of Section 3(a) of the Investment Company Act and that therefore (1) as a result of the filing of the Application for an Order Pursuant to Section 3(b)(2) or, alternatively, pursuant to Section 6(c) of the Investment Company Act by the Company on January 15, 1997, the Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Document, will not be, required to register 24 24 as an investment company under the Investment Company Act (whether as an open-end investment company, unit investment trust or face-amount certificate company or closed-end investment company) during the 60 day exemption period provided for in Section 3(b)(2) of the Investment Company Act and (2) the statement contained in the Offering Document in the third sentence of the third paragraph under the caption "Risk Factors--Use of Proceeds; Investment Company Act Considerations" is in all material respects an accurate description of the effect of the filing of an application for exemption under Section 3(b)(2) of the Investment Company Act; provided, however, that counsel will express no opinion as to the Company's status under the Investment Company Act following the expiration of such exemption, which will terminate on March 15, 1997, unless extended by the Commission; and (D) based upon and subject to certain assumptions, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and Regulation S; and it is not necessary to qualify an indenture in respect of the Offered Securities under the Trust Indenture Act.
Appears in 1 contract
Sources: Purchase Agreement (Electronic Retailing Systems International Inc)
Subsequent to the execution and delivery. of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii)(A) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company or and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Initial Purchasers, including CSFBCRepresentatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (Bii) any downgrading in the rating of any debt securities (including convertible debt securities) of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities (including convertible debt securities) of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (Cv) any banking moratorium declared by U.S. Federal or or, New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (Dvii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international 19 19 calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers, including CSFBCRepresentatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(i) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Krug▇▇▇, ▇▇ap▇▇▇▇ & ▇rim▇▇▇▇, ▇▇unsel for the Company, to the effect that:
(A) as of the Closing Date, such counsel have no reason to believe the Company's offering circular dated January 21, 1997 (the "Offering Circular") contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Offering Circular of legal and governmental proceedings and contracts are accurate in all material respects and in all material respects fairly describe such items (it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Document);
(B) the Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole;
(C) the Principal Subsidiary (as defined in the Offering Document) has been duly incorporated and is an existing corporation in 20 20 good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and such subsidiary is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole; all of the issued and outstanding capital stock of such subsidiary has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of such subsidiary owned by the Company is owned, to the best of such counsel's knowledge, free from liens, encumbrances and defects (except as disclosed in the Offering Document);
(D) the Indenture and the Warrant Agreement have been duly authorized, executed and delivered by the Company; the Offered Securities have been duly authorized, executed, authenticated, issued and delivered and conform in all material respects to the description thereof contained in the Offering Document; and the Indenture, the Warrant Agreement and such Offered Securities constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity;
(E) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and conforms in all material respects to the description thereof contained in the Offering Document, and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting 21 21 creditors' rights and to general principles of equity (except that no opinion need be expressed with respect to the indemnification or construction provisions contained therein);
(F) the Warrants are convertible into the Underlying Shares of the Company in accordance with their terms; the Underlying Shares initially issuable upon conversion of such Warrants have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding Common Stock has been duly authorized and validly issued, is fully paid and nonassessable and conforms in all material respects to the description thereof contained in the Offering Document; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities or the Underlying Shares;
(G) to such counsel's knowledge, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation by the Company of the transactions contemplated by the Operative Documents or in connection with the issuance and sale of the Offered Securities, except as may be required under the Securities Act with respect to the Registration Rights Agreement and the transactions contemplated thereunder;
(H) to such counsel's knowledge, the execution, delivery and performance by the Company of the Operative Documents, and the consummation by the Company of the transactions contemplated thereby, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject except for such 22 22 breaches, violations or defaults that would not individually or in the aggregate result in a material adverse effect on the Company and its subsidiaries taken as a whole, or the charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement;
(I) this Agreement has been duly authorized, executed and delivered by the Company;
(J) to the knowledge of such counsel, the Company and the Principal Subsidiary possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them except for such certificates, authorities or permits failure to possess which would not, individually or in the aggregate, have a material adverse effect on the Company and the Principal Subsidiary taken as a whole and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that are reasonably likely individually or in the aggregate to have a material adverse effect on the Company and the Principal Subsidiary taken as a whole; and
(K) to such counsel's knowledge, except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that are reasonably likely individually or in the aggregate to have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole, or would materially and adversely affect the ability of the Company to perform its obligations under the Operative Documents, or which are otherwise material in the context of the sale of the Offered Securities; and, to such counsel's knowledge, no such actions, suits or proceedings are threatened; respect to or under the Investment Company Act of 1940 or any Blue Sky laws or the registration requirements of the Securities Act, or any rules and regulations thereunder, or the effects of any such provision.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Hugh▇▇ ▇▇▇b▇▇▇ & ▇eed ▇▇▇, special counsel for the Company, to the effect that:
(A) based upon and subject to certain assumptions, no securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as any of the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated interdealer quotation system;
(B) as of the Closing Date, the statements contained in the Offering Circular in the second paragraph under the caption "Risk Factors--Use of Proceeds; Investment Company Act Considerations" and in the first sentence of the penultimate paragraph under such caption fairly describe in all material respects the matters discussed therein;
(C) based upon and subject to certain assumptions and qualifications, the temporary exemption provided for in Section 3(b)(2) of the Investment Company Act exempts both companies that are investment companies within the meaning of paragraph (1) of Section 3(a) of the Investment Company Act and of paragraph (3) of Section 3(a) of the Investment Company Act and that therefore (1) as a result of the filing of the Application for an Order Pursuant to Section 3(b)(2) or, alternatively, pursuant to Section 6(c) of the Investment Company Act by the Company on January 15, 1997, the Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Document, will not be, required to register 24 24 as an investment company under the Investment Company Act (whether as an open-end investment company, unit investment trust or face-amount certificate company or closed-end investment company) during the 60 day exemption period provided for in Section 3(b)(2) of the Investment Company Act and (2) the statement contained in the Offering Document in the third sentence of the third paragraph under the caption "Risk Factors--Use of Proceeds; Investment Company Act Considerations" is in all material respects an accurate description of the effect of the filing of an application for exemption under Section 3(b)(2) of the Investment Company Act; provided, however, that counsel will express no opinion as to the Company's status under the Investment Company Act following the expiration of such exemption, which will terminate on March 15, 1997, unless extended by the Commission; and
(D) based upon and subject to certain assumptions, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and Regulation S; and it is not necessary to qualify an indenture in respect of the Offered Securities under the Trust Indenture Act.
Appears in 1 contract
Sources: Purchase Agreement (Lear Corp /De/)