Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows: (1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”). (2) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing. (3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus. (4) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (5) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus. (6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares. (7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required. (8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Agfeed Industries, Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the SEC and except as required pursuant to this Agreement, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state there are no outstanding (i) securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case any of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock subsidiaries of the Company have been duly authorized and validly issued, which are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding convertible into or exchangeable for shares of Common Stock capital stock or voting securities of any subsidiary of the Company were 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 (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock and the Series D Preferred Stock contained in the Preliminary Prospectus.
(5) The Company has reserved from its duly authorized capital stock a number of shares of Common Stock sufficient for issuance of all shares of Common Stock issuable upon the conversion of all shares of Series D Preferred Stock (the “Conversion Shares”).
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of the Certificate of Designations (which is required to be filed and effective prior to the Closing in accordance with Section 3(b)(3) hereof), the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on January 10, 2012, at least a number of shares of Common Stock and Series D Preferred Stock equal to the number of Investor Shares and Conversion Shares were available for issuance pursuant to the Registration Statement, which permits the issuance of the Investor Shares and the Conversion Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents Company by the Investors specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(8) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement, Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and the Final Prospectussubject to customary audit adjustments) applied on a consistent basis, taken as a whole, complied or will comply are consistent in all material respects with the applicable provisions books and records of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Company, and accurately present in all material respects the applicable rules consolidated financial position, results of operations and regulations cash flow of the Commission thereunderCompany and its subsidiaries as of and for the periods covered thereby.
(9) Neither the Company nor any of its subsidiaries has sustained since the respective dates of the latest audited financial statements included in the Registration Statement and Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Registration Statement and Prospectus; and, since the respective dates as of which information is given in the Registration Statement and Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries.
(10) Other than as disclosed in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares, and no such proceedings are threatened in writing to the Company or, to the Company’s knowledge, have been contemplated by governmental or regulatory authorities or threatened by others.
(11) The Company and each of its subsidiaries have title to all the real property, and owns all other properties and assets, reflected as owned in the financial statements included in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or disclosed in the Company’s SEC filings or exhibits thereto, in favor of the Investors in connection with the Facility Agreement and all amendments thereto, or which are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(12) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company could reasonably be expected to be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(13) There are no holders of securities of the Company having preemptive rights to purchase Common Stock. There is are no material document holders or beneficial owners of a character required securities of the Company having rights to be described in registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the Preliminary Prospectus failure to obtain such waiver would not individually or in the Final Prospectus or aggregate reasonably be expected to be filed as an exhibit to the Registration Statement that is not described or filed as requiredhave a Material Adverse Effect.
(8) 14) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arena Pharmaceuticals Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”).
(2) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(5) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.to
Appears in 1 contract
Samples: Securities Purchase Agreement (Agfeed Industries, Inc)
Company Representations, Warranties and Covenants. The Company hereby representsrepresents and warrants (and where applicable, warrants covenants and agrees agrees) as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as now being conducted and as described in the Preliminary ProspectusRegistration Statement, Prospectus and the SEC Documents, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Effect.
(2) No consentEach Subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as now being conducted and as described in the Registration Statement, authorizationProspectus and the SEC Documents, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under in the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closingaggregate have a Material Adverse Effect.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Offered Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Offered Shares will be validly issued, fully paid and nonassessablenonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, and will conform to the description of the Common Stock contained in the Preliminary Prospectus. The issuance by the Company of the Offered Shares has been registered under the Securities Act and all of the Offered Shares are freely transferable and freely tradable by each Investor without restriction.
(65) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company (including, without limitation, any certificates of designation contained therein) or the By-Laws (as amended to date) of the CompanyCompany or any other organizational documents of the Company or any of its Subsidiaries, (ii) conflict with, result in a breach or violation of any of the terms or provisions of, or constitute a material default under, or give to others any rights of termination, amendment, acceleration or cancellation of 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or and would not adversely affect the ability of the Company to issue and sell the Investor Offered Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Offered Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of a Notification of Listing of Additional Shares with NYSE MKT LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(76) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Offered Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Offered Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents incorporated Company by reference the Investors specifically for inclusion in the Registration StatementStatement or Prospectus or any amendment or supplement thereto.
(7) The audited consolidated balance sheets of the Company as at December 31, the Prospectus 2012 and December 31, 2011, and the Final Prospectusrelated consolidated statements of income and of cash flows for the fiscal years ended on such dates, taken as a wholereported on by and accompanied by an audit report from Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx PC, complied or will comply present fairly in all material respects with the applicable provisions consolidated financial condition of the Securities Exchange Act of 1934, Company as amended (the “Exchange Act”)at such date, and the applicable rules consolidated results of its operations and regulations its consolidated cash flows for the respective fiscal years then ended. The unaudited condensed consolidated balance sheet of the Commission thereunderCompany as at June 30, 2013, and the related unaudited condensed consolidated statements of operations and cash flows for such period, present fairly the consolidated financial condition of the Company as at such date, and the consolidated results of its operations and its consolidated cash flows for the such period then ended (subject to normal year end audit adjustments). There is no material document All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied consistently throughout the periods involved (except as approved by the aforementioned firm of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as requiredaccountants and disclosed therein).
(8) The Since June 30, 2013, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, except as disclosed in the SEC Documents filed subsequent thereto, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made any material capital expenditures, individually or in the aggregate. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so.
(9) There is notno pending or, to the Company’s knowledge, threatened action, suit or proceeding, nor any injunction, writ, restraining order or other order of any nature against or affecting any the Company or any of its Subsidiaries, its officers or directors, or the property of the Company or any of its Subsidiaries, in any court or tribunal, or before any arbitrator of any kind or before or by any Governmental Authority (i) asserting the invalidity of this Agreement or the other Transaction Documents, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby or thereby, (iii) seeking any determination or ruling that might materially and adversely affect (A) the performance by the Company of this Agreement or the other Transaction Documents or (B) the validity or enforceability of this Agreement or the other Transaction Documents or (iv) asserting a claim for payment of money adverse to the Company or any of its Subsidiaries or the conduct of its or their business other than the litigation disclosed in the SEC Documents, except in each, as would not in the aggregate reasonably be expected to have a Material Adverse Effect. “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and does not intend any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amendedgovernment.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ampio Pharmaceuticals, Inc.)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, approvalwith corporate power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified as a foreign corporation for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. All subsidiaries and their respective jurisdictions of incorporation are identified on Schedule II hereto. Except as disclosed in Schedule II, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing all of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock or other voting securities of each subsidiary is owned by the Company, directly or indirectly, free and clear of any lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities). Except as disclosed by the Company’s periodic reports filed with the SEC, there are no outstanding (i) securities of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case any of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock subsidiaries of the Company have been duly authorized and validly issued, which are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding convertible into or exchangeable for shares of Common Stock capital stock or voting securities of any subsidiary of the Company were 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 (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(65) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of the Prospectus Supplement, the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(76) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above and complies the documents incorporated by reference therein, setting forth the terms of the offering, sale and plan of distribution of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On Copies of such Registration Statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein that were filed with the effective Commission on or prior to the date of this Agreement have been delivered to the Investor. The final form of prospectus included in the Registration Statement, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on September 24, 2009, at least a number of shares of Common Stock equal to the number of Investor Shares were available for issuance pursuant to the Registration Statement, which permits the sale of the Investor Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commissionany statutes, the regulations, contracts or other documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character that are required to be described in the Registration Statement, the Preliminary Prospectus Statement or the Final Prospectus or to be filed as an exhibit exhibits to the Registration Statement that is not have been so described or filed. The foregoing representations and warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Investors furnished in writing to the Company by the Investors specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The documents which are incorporated by reference in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as requiredthe case may be, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or omitted 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 and any further documents so filed and incorporated by reference shall, when they become effective under the Securities Act or when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) 7) The consolidated financial statements and financial schedules of the Company is notincluded or incorporated by reference in the Registration Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and does not intend to conduct its business accurately present in a manner in which it would becomeall material respects the consolidated financial position, an “investment company” as defined in Section 3(a) results of operations and cash flow of the Investment Company Act and its subsidiaries as of 1940, as amendedand for the periods covered thereby.
Appears in 1 contract
Company Representations, Warranties and Covenants. The Company hereby representsrepresents and warrants (and where applicable, warrants covenants and agrees agrees) as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as now being conducted and as described in the Preliminary ProspectusRegistration Statement, Prospectus and the SEC Documents, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Effect.
(2) No consentEach Subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as now being conducted and as described in the Registration Statement, authorizationProspectus and the SEC Documents, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. Except as disclosed by the SEC Documents and except as required pursuant to this Agreement, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state there are no outstanding (i) securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case any of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock Subsidiaries of the Company have been duly authorized and validly issued, which are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding convertible into or exchangeable for shares of Common Stock capital stock or voting securities of any Subsidiary of the Company were 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 (ii) options or other rights to purchaseacquire from the Company or any Subsidiary of the Company, or equity other obligation of the Company or debt any Subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any Subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any Subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Offered Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Offered Shares will be validly issued, fully paid and nonassessablenonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, and will conform to the description of the Common Stock contained in the Preliminary Prospectus. The issuance by the Company of the Offered Shares has been registered under the Securities Act and all of the Offered Shares are freely transferable and freely tradable by each Investor without restriction (other than the restrictions pursuant to Section 7(a) of this Agreement).
(65) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company (including, without limitation, any certificates of designation contained therein) or the By-Laws (as amended to date) of the CompanyCompany or any other organizational documents of the Company or any of its Subsidiaries, (ii) conflict with, result in a breach or violation of any of the terms or provisions of, or constitute a material default under, or give to others any rights of termination, amendment, acceleration or cancellation of 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or and would not adversely affect the ability of the Company to issue and sell the Investor Offered Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Offered Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(76) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Offered Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Offered Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents incorporated Company by reference the Investors specifically for inclusion in the Registration StatementStatement or Prospectus or any amendment or supplement thereto.
(7) The audited consolidated balance sheets of the Company as at June 30, the Prospectus 2012 and June 30 2011, and the Final Prospectusrelated consolidated statements of income and of cash flows for the fiscal years ended on such dates, taken as a wholereported on by and accompanied by an audit report from KPMG LLP, complied or will comply present fairly in all material respects with the applicable provisions consolidated financial condition of the Securities Exchange Act of 1934, Company as amended (the “Exchange Act”)at such date, and the applicable rules consolidated results of its operations and regulations its consolidated cash flows for the respective fiscal years then ended. The unaudited condensed consolidated balance sheet of the Commission thereunderCompany as at March 31, 2013, and the related unaudited condensed consolidated statements of operations and cash flows for such period, present fairly the consolidated financial condition of the Company as at such date, and the consolidated results of its operations and its consolidated cash flows for the such period then ended (subject to normal year end audit adjustments). There is no material document All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied consistently throughout the periods involved (except as approved by the aforementioned firm of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as requiredaccountants and disclosed therein).
(8) The Since March 31, 2013, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, except as disclosed in the SEC Documents filed subsequent thereto, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made any material capital expenditures, individually or in the aggregate. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so.
(9) There is notno pending or, to the Company’s knowledge, threatened action, suit or proceeding, nor any injunction, writ, restraining order or other order of any nature against or affecting any the Company or any of its Subsidiaries, its officers or directors, or the property of the Company or any of its Subsidiaries, in any court or tribunal, or before any arbitrator of any kind or before or by any Governmental Authority (i) asserting the invalidity of this Agreement or the other Transaction Documents, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby or thereby, (iii) seeking any determination or ruling that might materially and adversely affect (A) the performance by the Company of this Agreement or the other Transaction Documents or (B) the validity or enforceability of this Agreement or the other Transaction Documents or (iv) asserting a claim for payment of money adverse to the Company or any of its Subsidiaries or the conduct of its or their business other than the litigation disclosed in the Company’s filings posted on the SEC Xxxxx website, except in each, as would not in the aggregate reasonably be expected to have a Material Adverse Effect. “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and does not intend any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amendedgovernment.
Appears in 1 contract
Samples: Securities Purchase Agreement (Unwired Planet, Inc.)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1i) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2ii) No consentEach subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, approvalwith corporate power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified as a foreign corporation for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with aggregate have a Material Adverse Effect. Exhibit 21.1 to the Commission by Company’s Annual Report on Form 10-K for the Company on April 21fiscal year ended December 28, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in 2007 lists all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities subsidiaries of the Company. There are no authorized Except for qualifying shares, the Company owns all of the outstanding capital stock or outstanding optionsother voting securities of each such subsidiary, warrantsdirectly or indirectly, preemptive rightsfree and clear of any lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities), and free and clear of any rights of first refusal or other rights parties to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectusacquire such securities.
(4iii) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company Company, and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(5iv) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(6v) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws and have been or will be obtained and that have been or will be made in connection with the listing of the Investor Shares on the Nasdaq Global Market.
(7vi) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus compliedwill comply, and at the date of the Closing, the Final Registration Statement and the Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus Registration Statement and other information provided in writing to the Investors, when ready togetherProspectus, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus Statement and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus Statement or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(8) vii) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement and the Prospectus comply as to form with the applicable accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and accurately present in all material respects the consolidated financial position, results of operations and cash flow of the Company and its subsidiaries as of and for the periods covered thereby.
(viii) The Company and each of its subsidiaries have good and marketable title to all properties and assets reflected as owned in the financial statements included or incorporated by reference in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements (including all notes included therein), or disclosed in the Prospectus, or that are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(ix) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company might be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(x) There are no authorized 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 its subsidiaries other than those described in the Registration Statement and the Prospectus. There are no holders or beneficial owners of securities of the Company having rights to registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the failure to obtain such waiver would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(xi) The Company has not taken and will not take any action that constitutes or is designed to cause or result, or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Shares.
(xii) Other than as disclosed in the Prospectus, the Company together with its subsidiaries owns and possesses all right, title and interest in and to, or, to the Company’s knowledge, has duly licensed from third parties, all patents, patent rights, trade secrets, inventions, know-how, trademarks, trade names, copyrights, service marks and other proprietary rights (“Intellectual Property”) material to the business of the Company and each of its subsidiaries taken as a whole as currently conducted and as described in the Prospectus. Neither the Company nor any of its subsidiaries has received any notice of infringement or misappropriation from any third party that has not been resolved or disposed of and, to the Company’s knowledge, neither the Company nor any of its subsidiaries has infringed or misappropriated the Intellectual Property of any third party, which infringement or misappropriation would individually or in the aggregate have a Material Adverse Effect. Further, other than as disclosed in the Prospectus there is no pending or, to the Company’s knowledge and except as would not individually or in the aggregate have a Material Adverse Effect, threatened action, suit, proceeding or claim by governmental authorities or others that the Company is infringing a patent, and there is no pending or, to the Company’s knowledge and except as would not individually or in the aggregate have a Material Adverse Effect, threatened legal or administrative proceeding relating to patents and patent applications of the Company, other than proceedings initiated by the Company before the United States Patent and Trademark Office and the patent offices of certain foreign jurisdictions, which are in the ordinary course of patent prosecution. The conduct of the business of the Company and each of its subsidiaries is in compliance in all respects with applicable laws, rules and regulations of governmental and regulatory bodies, except where the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect.
(xiii) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) within the meaning of the Investment Company Act of 1940, as amended.
(xiv) All offers and sales of the Company’s capital stock prior to the date hereof were at all relevant times registered pursuant to the Securities Act or exempt from the registration requirements of the Securities Act and were duly registered with or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws, except where the failure to do so would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(xv) The Company has filed with the Nasdaq Global Market a Notification of Listing of Additional Shares with respect to the Investor Shares required by the rules of the Nasdaq Global Market and has not received a notice from the Nasdaq Global Market that such notification is insufficient. The offer and sale of the Offered Shares do not require stockholder approval under Rule 5635 of the Nasdaq Stock Market Rules.
(xvi) There is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(xvii) There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to, or for the benefit of, any of the officers or directors of the Company.
Appears in 1 contract
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the SEC, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state there are no outstanding (i) securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case any of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock subsidiaries of the Company have been duly authorized and validly issued, which are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding convertible into or exchangeable for shares of Common Stock capital stock or voting securities of any subsidiary of the Company were 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 (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(65) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(76) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on August 5, 2010, at least a number of shares of Common Stock equal to the number of Investor Shares were available for issuance pursuant to the Registration Statement, which permits the sale of the Investor Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents Company by the Investors specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(7) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement, Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and the Final Prospectussubject to customary audit adjustments) applied on a consistent basis, taken as a whole, complied or will comply are consistent in all material respects with the applicable provisions books and records of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Company, and accurately present in all material respects the applicable rules consolidated financial position, results of operations and regulations cash flow of the Commission thereunder. There is no material document Company and its subsidiaries as of a character required to be described in and for the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as requiredperiods covered thereby.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arena Pharmaceuticals Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business is validly existing as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Effect.
(2) No consentEach subsidiary of the Company has been duly incorporated or organized and is validly existing in good standing (to the extent the concept of good standing exists in the subsidiary’s jurisdiction or incorporation or organization) under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the Commission and except as required pursuant to this Agreement and as of the date of the most recent quarterly report filed by the Company on April 21Company, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” there are no outstanding (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock i) securities of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None or any of the outstanding shares of Common Stock subsidiaries of the Company were issued in violation which are convertible into or exchangeable for shares of capital stock or voting securities of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities subsidiary of the Company. There are no authorized Company or outstanding options, warrants, preemptive rights, rights of first refusal (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares Agreement will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Series B Preferred Stock contained in the Preliminary Prospectus. The Investor Shares and the Conversion Shares will be issued in compliance with all federal and state securities laws.
(5) The Company has reserved from its duly authorized capital stock a number of shares of Common Stock sufficient for issuance of all of the Conversion Shares. The Conversion Shares, when issued, will have been duly authorized and, when issued, delivered and paid for in accordance with the terms of the Certificate of Designation, will have been validly issued and will be fully paid and nonassessable. The Company shall, so long as any of the Series B Preferred Stock is outstanding, take all action necessary to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting the conversion of the Series B Preferred Stock, the number of shares of Common Stock issuable upon such conversion (without taking into account any limitations on the conversion of the Series B Preferred Stock set in the Certificate of Designation).
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws By‑Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of one or more Form 8-Ks, the filing of the Prospectus Supplement, the filing of the Certificate of Designation (which is required to be filed and effective prior to the Closing in accordance with Section 3(b)(2) hereof), the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares and the Conversion Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on November 26, 2014, at least a number of shares of Preferred Stock and Common Stock equal to the number of Investor Shares and Conversion Shares, respectively, were available for issuance pursuant to the Registration Statement, which permits the issuance of the Investor Shares and the Conversion Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Preliminary Prospectus Statement or the Final Prospectus or to be filed as an exhibit exhibits to the Registration Statement that is not have been so described or filed as requiredfiled.
(8) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and accurately present in all material respects the consolidated financial position, results of operations and cash flow of the Company and its subsidiaries as of and for the periods covered thereby.
(9) Neither the Company nor any of its subsidiaries has sustained since the respective dates of the latest audited financial statements included or incorporated by reference in the Registration Statement and Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Registration Statement and Prospectus; and, since the respective dates as of which information is given in the Registration Statement and Prospectus, other than as contemplated in this Agreement, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries.
(10) Other than as disclosed in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares, and no such proceedings are threatened in writing to the Company or, to the Company’s knowledge, have been contemplated by governmental or regulatory authorities or threatened by others.
(11) The Company and each of its subsidiaries have title to all the real property, and owns all other properties and assets, reflected as owned in the financial statements included or incorporated by reference in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or disclosed in the Company’s filings with the Commission or exhibits thereto, or which are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(12) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company could reasonably be expected to be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(13) There are no holders of securities of the Company having preemptive rights to purchase Common Stock. There are no holders or beneficial owners of securities of the Company having rights to registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the failure to obtain such waiver would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(14) The issuance of the Investor Shares and the Conversion Shares will not obligate the Company to issue shares of Common Stock or other Common Stock Equivalents to any Person (other than the Investors), will not trigger any preemptive or other rights to subscribe for or purchase securities and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price or other right under any of such securities.
(15) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
(16) The Company is in compliance in all material respects with all listing and maintenance requirements of the Principal Trading Market. The issuance and sale of the Investor Shares and the issuance of the Conversion Shares will, at the time of such issuance and sale, comply in all material respects with and will not contravene the rules and regulations of the Principal Trading Market. The Conversion Shares, when issued, will be listed for trading on the Principal Trading Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alimera Sciences Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the SEC and except as required pursuant to this Agreement, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state there are no outstanding (i) securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case any of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock subsidiaries of the Company have been duly authorized and validly issued, which are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding convertible into or exchangeable for shares of Common Stock capital stock or voting securities of any subsidiary of the Company were 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 (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock and the Series C Preferred Stock contained in the Preliminary Prospectus.
(5) The Company has reserved from its duly authorized capital stock a number of shares of Common Stock sufficient for issuance of all shares of Common Stock issuable upon the conversion of all shares of Series C Preferred Stock (the “Conversion Shares”).
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of the Certificate of Designations (which is required to be filed and effective prior to the Closing in accordance with Section 3(b)(3) hereof), the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on March 28, 2011, at least a number of shares of Common Stock and Series C Preferred Stock equal to the number of Investor Shares and Conversion Shares were available for issuance pursuant to the Registration Statement, which permits the issuance of the Investor Shares and the Conversion Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(6) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents Company by the Investors specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(8) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement, Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and the Final Prospectussubject to customary audit adjustments) applied on a consistent basis, taken as a whole, complied or will comply are consistent in all material respects with the applicable provisions books and records of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Company, and accurately present in all material respects the applicable rules consolidated financial position, results of operations and regulations cash flow of the Commission thereunderCompany and its subsidiaries as of and for the periods covered thereby.
(9) Neither the Company nor any of its subsidiaries has sustained since the respective dates of the latest audited financial statements included in the Registration Statement and Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Registration Statement and Prospectus; and, since the respective dates as of which information is given in the Registration Statement and Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries.
(10) Other than as disclosed in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares, and no such proceedings are threatened in writing to the Company or, to the Company’s knowledge, have been contemplated by governmental or regulatory authorities or threatened by others.
(11) The Company and each of its subsidiaries have title to all the real property, and owns all other properties and assets, reflected as owned in the financial statements included in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or disclosed in the Company’s SEC filings or exhibits thereto, in favor of the Investors in connection with the Facility Agreement and all amendments thereto, or which are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(12) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company could reasonably be expected to be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(13) There are no holders of securities of the Company having preemptive rights to purchase Common Stock. There is are no material document holders or beneficial owners of a character required securities of the Company having rights to be described in registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the Preliminary Prospectus failure to obtain such waiver would not individually or in the Final Prospectus or aggregate reasonably be expected to be filed as an exhibit to the Registration Statement that is not described or filed as requiredhave a Material Adverse Effect.
(8) 14) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arena Pharmaceuticals Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business is validly existing as a corporation in good standing under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority (corporate and other) to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole whole; and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a “ Material Adverse Effect ”)foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not have a material adverse effect on the results of operations or financial condition of the Company and its subsidiaries taken as a whole.
(2) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and the Agreement has been duly executed and delivered by the Company; and this Agreement, when duly executed and delivered by the parties heretoInvestor, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ ' rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(53) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreementhereby, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(64) The execution and delivery of this Agreement do notAgreement, the consummation by the Company of the transactions herein contemplated and the compliance by the Company with the terms hereof do not and will not, (i) not violate the Articles Certificate of Incorporation (as amended to date) of the Company Company, or the By-Laws (as amended to date) of the Company, (ii) 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 material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory governmental agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect material adverse effect on the results of operations or adversely affect the ability financial condition of the Company to and its subsidiaries taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement, the issue and sell of the Investor SharesShares or the consummation by the Company of the other transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under Federal or state securities or "blue sky" laws, or in connection with the listing of the Offered Shares on the New York Stock Exchange, Inc. or, with respect to requirements applicable to the Investor.
(75) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s 's knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on and the date prospectus included as part of the Prospectus, the Preliminary Prospectus compliedRegistration Statement fully conformed, and at the date of the Closing, the Final Registration Statement and the Prospectus will complyfully conform, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the effective date of the Registration Statement, the Prospectus did not, and at the date of the Closing and on the date the Prospectus Supplement is filed with the Commission pursuant to Rule 424(b) under the Securities Act, the Prospectus will not, contain an untrue statement of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commission, on said dates the documents incorporated by reference in the Registration Statement, the Prospectus Statement and the Final Prospectus, taken as a whole, complied fully conformed or will comply fully conform in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended, and the applicable rules and regulations of the Commission thereunder. There is no material document , and, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a character material fact or omit to state a material fact required to be described stated therein or necessary to make the statements therein not misleading.
(6) The unaudited financial statements of the Company for the six month period ended November 30, 2001 included or incorporated by reference in the Registration StatementStatement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the Preliminary books and records of the Company, and accurately present in all material respects the financial position and results of operations of the Company and its subsidiaries as of and for the six month period ended November 30, 2001.
(7) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Final Prospectus or to be filed Prospectus; and, since the respective dates as an exhibit to of which information is given in the Registration Statement that is and the Prospectus, there has not described been any material change in the capital stock or filed long- term debt of the Company or any of its subsidiaries, the Company and its subsidiaries have not incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries considered as requireda whole, otherwise than as disclosed in or contemplated by the Prospectus.
(8) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(9) The Investor shall have no obligation with respect to any fees incurred by the Company or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees) or with respect to any claims made by or on behalf of other Persons for fees or commissions payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person, that may be due in connection with the transactions contemplated by this Agreement. The Company is notshall indemnify and hold harmless the Investor, and does not intend to conduct its business in a manner in which it would becomeemployees, an “investment company” as defined in Section 3(a) officers, directors, trustees, partners, or any affiliate of the Investment Investor, from and against any losses, claims, damages, costs (including the costs of preparation and attorney's fees) and expenses suffered in respect of such claimed or existing fees incurred by the Company Act of 1940or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees), as amendedsuch fees and expenses are incurred.
(10) Neither the Company nor any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that the Company believes constitutes material, non-public information.
Appears in 1 contract
Samples: Stock Purchase Agreement (Aar Corp)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly organized or incorporated and is validly existing under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the Commission and except as required pursuant to this Agreement, and as of the date of the most recent periodic report filed by the Company on April 21Company, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” there are no outstanding (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock i) securities of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None or any of the outstanding shares of Common Stock subsidiaries of the Company were issued in violation which are convertible into or exchangeable for shares of capital stock or voting securities of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities subsidiary of the Company. There are no authorized Company or outstanding options, warrants, preemptive rights, rights of first refusal (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities, except pursuant to the terms of the Warrants.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company Company, and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by in accordance with the terms of this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Series B Preferred Stock contained in the Preliminary Prospectus.
(5) The Company has reserved from its duly authorized capital stock a number of shares of Common Stock sufficient for issuance of all shares of Common Stock issuable upon the conversion of all shares of Series B Preferred Stock (the “Conversion Shares”). The Conversion Shares, when issued pursuant to the terms of the Certificate of Designation, shall be validly issued, fully paid and nonassessable.
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Amended and Restated Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of a Form 8-K, the filing of the Prospectus Supplement, the filing of the Certificate of Designation (which is required to be filed and effective prior to the Closing in accordance with Section 3(b)(2) hereof), the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares and the Conversion Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has been filed with and declared effective by the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and the Conversion Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on May 2, 2011, at least a number of shares of Common Stock and Series B Preferred Stock equal to the number of Investor Shares and Conversion Shares were available for issuance pursuant to the Registration Statement, which permits the issuance of the Investor Shares and the Conversion Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; . The foregoing representations and when filed warranties in this Section 4(b)(7) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Commission, Investors furnished in writing to the documents Company by the Investors specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(8) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement, Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and the Final Prospectussubject to customary audit adjustments) applied on a consistent basis, taken as a whole, complied or will comply are consistent in all material respects with the applicable provisions books and records of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Company, and accurately present in all material respects the applicable rules consolidated financial position, results of operations and regulations cash flow of the Company and its subsidiaries as of and for the periods covered thereby.
(9) Neither the Company nor any of its subsidiaries has sustained since the respective dates of the latest audited financial statements included in the Registration Statement and Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Registration Statement and Prospectus; and, since the respective dates as of which information is given in the Registration Statement and Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries.
(10) Other than as disclosed in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares, and no such proceedings are threatened in writing to the Company or, to the Company’s knowledge, have been contemplated by governmental or regulatory authorities or threatened by others.
(11) The Company and each of its subsidiaries have title to all the real property, and owns all other properties and assets, reflected as owned in the financial statements included in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or disclosed in the Company’s Commission thereunderfilings or exhibits thereto, in favor of the Investors in connection with the Facility Agreements and all amendments thereto, or which are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(12) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company could reasonably be expected to be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(13) There are no holders of securities of the Company having preemptive rights to purchase Common Stock. There is are no material document holders or beneficial owners of a character required securities of the Company having rights to be described in registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the Preliminary Prospectus failure to obtain such waiver would not individually or in the Final Prospectus or aggregate reasonably be expected to be filed as an exhibit to the Registration Statement that is not described or filed as requiredhave a Material Adverse Effect.
(8) 14) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
(15) The Company agrees to execute and deliver the Warrant Amendments simultaneously with the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Array Biopharma Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business is validly existing as a corporation in good standing under the laws of its jurisdiction the State of organizationCalifornia, with corporate power and authority (corporate and other) to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries Subsidiaries (as defined below) taken as a whole (a “ "Material Adverse Effect ”Effect").
; and each of the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (2corporate and other) No consentto own its properties and conduct its business as described in the Prospectus, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified as a foreign corporation for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under in the Securities Act or state securities or “blue sky” lawsaggregate have a Material Adverse Effect. The Company shall obtain Except for its ownership of (i) all the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21Cepheid, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereofS.A., if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conformsa French societe anonyme, and in the case Cepheid Canadian Corporation, a California corporation, and (ii) 50% of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of Xxxxxx Corp., a corporation incorporated under the laws of the Province of Nova Scotia (such entities, collectively, the "Subsidiaries"), the Company have been duly authorized and validly issueddoes not presently own or control, are fully paid and nonassessable and have been issued directly or indirectly, any equity interest in complianceany other corporation, in all material respectspartnership, with all applicable lawstrust, joint venture, association or other entity. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities Subsidiaries is a "Significant Subsidiary" 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 other than those described as such term is defined in the Preliminary Prospectus and those that will be described in the Final Prospectus.Regulation S-X.
(42) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and the Agreement has been duly executed and delivered by the Company; and this Agreement, when duly executed and delivered by the parties heretoInvestor, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ ' rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(53) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreementhereby, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(64) The execution and delivery of this Agreement do notAgreement, the consummation by the Company of the transactions herein contemplated and the compliance by the Company with the terms hereof do not and will not, (i) not violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory governmental or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to consummate the transactions contemplated hereby; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental or regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement, the issue and sell of the Investor SharesShares or the consummation by the Company of the other transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under federal or state securities or "blue sky" laws or in connection with the listing of the Offered Shares on the Nasdaq National Market.
(75) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"), for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s 's knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on and the date of the Prospectus, the Preliminary Prospectus compliedfully conformed, and at the date of the Closing, the Final Registration Statement and the Prospectus will complyfully conform, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the effective date of the Registration Statement, the Prospectus did not, and on the date the Prospectus Supplement is filed with the Commission pursuant to Rule 424(b) under the Securities Act and the date of the Closing, the Prospectus will not, contain an untrue statement of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus Statement and the Final Prospectus, taken as a whole, complied fully conformed or will comply fully conform in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), and the applicable rules and regulations of the Commission thereunder. There is no material document .
(6) The consolidated financial statements and financial schedules of a character required to be described the Company included or incorporated by reference in the Registration StatementStatement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the Preliminary unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and accurately present in all material respects the consolidated financial position, results of operations and cash flow of the Company and its Subsidiaries as of and for the periods covered thereby.
(7) Neither the Company nor any of its Subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business, including without limitation from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Final Prospectus or to be filed Prospectus; and, since the respective dates as an exhibit to of which information is given in the Registration Statement that is and the Prospectus, there has not described been any material change in the capital stock or filed long-term debt of the Company or any of its Subsidiaries, the Company and its Subsidiaries have not incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its Subsidiaries considered as requireda whole, otherwise than as disclosed or incorporated by reference in or contemplated by the Prospectus.
(8) Other than as set forth or incorporated by reference in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its Subsidiaries is a party or of which any material property of the Company or any of its Subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to consummate the transactions contemplated hereby; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental or regulatory authorities or threatened by others.
(9) The Company together with its Subsidiaries owns and possesses all right, title and interest in and to, or has duly licensed from third parties, all patents, patent rights, trade secrets, inventions, know-how, trademarks, trade names, copyrights, service marks and other proprietary rights ("Intellectual Property") material to the business of the Company and each of its Subsidiaries taken as a whole. Neither the Company nor any of its Subsidiaries has received any notice of infringement, misappropriation or conflict from any third party as to such that has not been resolved or disposed of and to the Company's knowledge, neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise conflicted with Intellectual Property of any third parties, which infringement, misappropriation or conflict would individually or in the aggregate have a Material Adverse Effect. To the Company's knowledge, there are no pending or threatened claims that the Company has infringed, misappropriated or otherwise conflicted with the Intellectual Property of any third parties, which infringement, misappropriation or conflict would individually or in the aggregate have a Material Adverse Effect. To the Company's knowledge, there are no pending or threatened claims that the Company has infringed, misappropriated or otherwise conflicted with the Intellectual Property of any third parties, which infringement, misappropriation or conflict would individually or in the aggregate have a Material Adverse Effect.
(10) The conduct of the business of the Company and each of its Subsidiaries is in compliance in all respects with applicable federal, state, local and foreign laws and regulations, except where the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect.
(11) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “"investment company” " as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
(12) The Investor shall have no obligation with respect to any fees incurred by the Company or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees) or with respect to any claims made by or on behalf of other Persons for fees or commissions payable by the Company to any broker, financial advisor or consultant, finder, selling agent, investment banker, bank or other Person, that may be due in connection with the transactions contemplated by this Agreement. The Company shall indemnify and hold harmless the Investor, its employees, officers, directors, trustees, partners, or any affiliate of the Investor, from and against any losses, claims, damages, costs (including the costs of preparation and reasonable attorney's fees) and expenses suffered in respect of such claimed or existing fees incurred by the Company or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees), as such fees and expenses are incurred.
(13) Neither the Company nor to the Company's knowledge, any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that the Company believes constitutes material, non-public information.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cepheid)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business is validly existing as a corporation in good standing under the laws of its jurisdiction the State of organizationCalifornia, with corporate power and authority (corporate and other) to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ "Material Adverse Effect ”Effect"); and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect.
(2) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and the Agreement has been duly executed and delivered by the Company; and this Agreement, when duly executed and delivered by the parties heretoInvestor, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ ' rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(53) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreementhereby, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(64) The execution and delivery of this Agreement do notAgreement, the consummation by the Company of the transactions herein contemplated and the compliance by the Company with the terms hereof do not and will not, (i) not violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory governmental or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to consummate the transactions contemplated hereby; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental or regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement, the issue and sell of the Investor SharesShares or the consummation by the Company of the other transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under federal or state securities or "blue sky" laws or in connection with the listing of the Offered Shares on the Nasdaq National Market.
(75) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"), for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s 's knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on and the date of the Prospectus, the Preliminary Prospectus compliedfully conformed, and at the date of the Closing, the Final Registration Statement and the Prospectus will complyfully conform, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the effective date of the Registration Statement, the Prospectus did not, and on the date the Prospectus Supplement is filed with the Commission pursuant to Rule 424(b) under the Securities Act and the date of the Closing, the Prospectus will not, contain an untrue statement of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus Statement and the Final Prospectus, taken as a whole, complied fully conformed or will comply fully conform in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), and the applicable rules and regulations of the Commission thereunder. There is no material document .
(6) The consolidated financial statements and financial schedules of a character required to be described the Company included or incorporated by reference in the Registration StatementStatement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the Preliminary unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and accurately present in all material respects the consolidated financial position, results of operations and cash flow of the Company and its subsidiaries as of and for the periods covered thereby.
(7) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Final Prospectus or to be filed Prospectus; and, since the respective dates as an exhibit to of which information is given in the Registration Statement that is and the Prospectus, there has not described been any material change in the capital stock or filed long-term debt of the Company or any of its subsidiaries, the Company and its subsidiaries have not incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries considered as requireda whole, otherwise than as disclosed or incorporated by reference in or contemplated by the Prospectus.
(8) Other than as set forth or incorporated by reference in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to consummate the transactions contemplated hereby; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental or regulatory authorities or threatened by others.
(9) The Company together with its subsidiaries owns and possesses all right, title and interest in and to, or has duly licensed from third parties, all patents, patent rights, trade secrets, inventions, know-how, trademarks, trade names, copyrights, service marks and other proprietary rights ("Intellectual Property") material to the business of the Company and each of its subsidiaries taken as a whole. Neither the Company nor any of its subsidiaries has received any notice of infringement, misappropriation or conflict from any third party as to such that has not been resolved or disposed of and to the Company's knowledge, neither the Company nor any of its subsidiaries has infringed, misappropriated or otherwise conflicted with Intellectual Property of any third parties, which infringement, misappropriation or conflict would individually or in the aggregate have a Material Adverse Effect.
(10) The conduct of the business of the Company and each of its subsidiaries is in compliance in all respects with applicable federal, state, local and foreign laws and regulations, except where the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect.
(11) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “"investment company” " as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
(12) The Investor shall have no obligation with respect to any fees incurred by the Company or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees) or with respect to any claims made by or on behalf of other Persons for fees or commissions payable by the Company to any broker, financial advisor or consultant, finder, selling agent, investment banker, bank or other Person, that may be due in connection with the transactions contemplated by this Agreement. The Company shall indemnify and hold harmless the Investor, its employees, officers, directors, trustees, partners, or any affiliate of the Investor, from and against any losses, claims, damages, costs (including the costs of preparation and reasonable attorney's fees) and expenses suffered in respect of such claimed or existing fees incurred by the Company or any other Person (other than the Investor, if the Investor has agreed in writing to pay such fees), as such fees and expenses are incurred.
(13) Neither the Company nor to the Company's knowledge, any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that the Company believes constitutes material, non-public information.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cepheid)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”).
(2) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Preliminary Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(5) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Agfeed Industries, Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as followscovenants to the Purchaser that:
(1a) The Company is duly organized, validly existing and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results State of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Delaware.
(2b) No consentThis Agreement has been validly authorized, approvalexecuted and delivered by it and, assuming the due authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, execution and delivery and performance thereof by the Company of this Agreement or the issuance of the Investor SharesPurchaser, except for such consentsis a valid and binding agreement enforceable in accordance with its terms, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects subject to the description thereof contained in the Preliminary Prospectus general principles of equity and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal to bankruptcy or other similar laws affecting the enforcement of creditors’ rights to subscribe for or purchase securities of the Companygenerally. 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which the Company is a party which would prevent the Company from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Company is subject.
(c) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement; and the consummation of the transactions contemplated hereby are within the corporate powers of execution, delivery and performance by the Company and of this Agreement have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)Company.
(5d) The Investor Purchased Shares have been are duly and validly authorized for issuance and sale to the Purchaser by the Company, and and, when issued and delivered by the Company against payment therefor as contemplated by the Purchaser in accordance with the terms hereof, shall be validly issued and non-assessable and free from all preemptive or similar rights, taxes and encumbrances and the Purchased Shares shall be fully paid with the Purchaser being entitled to all rights accorded to a holder of Common Stock. Assuming the accuracy of the representations and warranties set forth in Section 4 of this Agreement, the Investor Shares will be validly issued, fully paid offer and nonassessable, and will conform to issuance by the description Company of the Common Stock contained in Purchased Shares is exempt from registration under the Preliminary ProspectusSecurities Act.
(6e) The execution and delivery of Company acknowledges that the Purchaser makes no representations or warranties as to any matter whatsoever except as expressly set forth in this Agreement do not, and the compliance or in any certificate delivered by the Purchaser to the Company in accordance with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Sharesthereof.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Securities Purchase Agreement (Allied Gaming & Entertainment Inc.)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as follows:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ “Material Adverse Effect Effect”).
(2) No consentEach subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, approvalwith corporate power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified as a foreign corporation for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consentsjurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a Material Adverse Effect. All subsidiaries and their respective jurisdictions of incorporation are identified on Schedule II hereto. Except as disclosed in Schedule II, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing all of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock or other voting securities of the Company each subsidiary is as set forth in the Prospectus Supplement filed with the Commission owned by the Company Company, directly or indirectly, free and clear of any lien and free of any other limitation or restriction (including any restriction on April 21the right to vote, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, sell or upon exercise otherwise dispose of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the such capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Companyvoting securities). There are no authorized outstanding (i) securities of the Company or outstanding options, warrants, preemptive rights, rights any of first refusal the subsidiaries of the Company which are convertible into or exchangeable for shares of capital stock or voting securities of any subsidiary of the Company or (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(65) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of the Prospectus Supplement and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(76) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement has been declared effective by Statement, which covers the Commission Investor Shares, including a form of prospectus and at the time it became effective, and as of the date hereof, the such amendments or supplements to such Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has as may have been issued and no proceeding for that purpose has been initiated or, required prior to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of this Agreement, has been prepared by the Prospectus, Company under the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration StatementAct, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when has been filed with the Commission, has become effective and filed with the documents incorporated Commission and incorporates by reference documents which the Company has filed in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects accordance with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement, to the prospectus included in the Registration Statement referred to above and the documents incorporated by reference therein, setting forth the terms of the offering, sale and plan of distribution of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceedings for that purpose are pending or, to the applicable rules and regulations knowledge of the Company, threatened by the Commission. Copies of such Registration Statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein that were filed with the Commission thereunderon or prior to the date of this Agreement have been delivered to the Investor. There is no material document The final form of a character required to be described prospectus included in the Registration Statement, as amended or supplemented from time to time (including the Preliminary Prospectus or the Final Prospectus or Supplement), is referred to be filed herein as an exhibit to the Registration Statement that is not described or filed as required.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.the
Appears in 1 contract
Company Representations, Warranties and Covenants. The Company hereby represents, warrants warrants, covenants and agrees as followsfollows as of the date hereof and as of the Closing:
(1) The Company and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized incorporated and has a valid existence and the authorization to transact business is validly existing as a corporation under the laws of its jurisdiction the State of organizationDelaware, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Effect.
(2) No consentEach subsidiary of the Company has been duly incorporated or organized and is validly existing in good standing (to the extent the concept of good standing exists in the subsidiary’s jurisdiction or incorporation or organization) under the laws of its jurisdiction of incorporation or organization, approvalwith power and authority to own its properties and conduct its business as described in the Prospectus, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required and has been duly qualified for the valid authorization, execution, delivery transaction of business and performance by is in good standing under the Company laws of this Agreement each other jurisdiction in which it owns or the issuance of the Investor Sharesleases properties or conducts any business so as to require such qualification, except for such consents, approvals, authorizations, registrations, filings jurisdictions wherein the failure to be so qualified and in good standing would not individually or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement aggregate have a Material Adverse Effect. Except as disclosed by the Company’s periodic reports filed with the Commission and except as required pursuant to this Agreement and as of the date of the most recent quarterly report filed by the Company on April 21Company, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” there are no outstanding (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus. All the issued and outstanding shares of the capital stock i) securities of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None or any of the outstanding shares of Common Stock subsidiaries of the Company were issued in violation which are convertible into or exchangeable for shares of capital stock or voting securities of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities subsidiary of the Company. There are no authorized Company or outstanding options, warrants, preemptive rights, rights of first refusal (ii) options or other rights to purchaseacquire from the Company or any subsidiary of the Company, or equity other obligation of the Company or debt any subsidiary of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for, any for capital stock or voting securities of any subsidiary of the Company other than those described in (collectively, the Preliminary Prospectus and those that will be described in “Subsidiary Securities”). There are no outstanding obligations of the Final ProspectusCompany or any subsidiary of the Company to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(43) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby are within the corporate powers of the Company and have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(54) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares Agreement will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Series B Preferred Stock contained in the Preliminary Prospectus. The Investor Shares and the Conversion Shares will be issued in compliance with all federal and state securities laws.
(5) The Company has reserved from its duly authorized capital stock a number of shares of Common Stock sufficient for issuance of all of the Conversion Shares. The Conversion Shares, when issued, will have been duly authorized and, when issued, delivered and paid for in accordance with the terms of the Certificate of Designation, will have been validly issued and will be fully paid and nonassessable. The Company shall, so long as any of the Series B Preferred Stock is outstanding, take all action necessary to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting the conversion of the Series B Preferred Stock, the number of shares of Common Stock issuable upon such conversion (without taking into account any limitations on the conversion of the Series B Preferred Stock set in the Certificate of Designation).
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles Certificate of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a material 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares; and no consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, delivery and performance by the Company of this Agreement or the issuance of the Investor Shares, except for the filing of one or more Form 8-Ks, the filing of the Prospectus Supplement, the filing of the Certificate of Designation (which is required to be filed and effective prior to the Closing in accordance with Section 3(b)(2) hereof), the filing of a Notification of Listing of Additional Shares with The NASDAQ Stock Market LLC, and for such consents, approvals, authorizations, registrations, filings or qualifications as may be required under state securities or “blue sky” laws.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securitiesAct. The Registration Statement, which covers the Investor Shares and the Conversion Shares, including a form of prospectus and such amendments or supplements to such Registration Statement as may have been required prior to the date of this Agreement, has been declared prepared by the Company under the provisions of the Securities Act, has been filed with the Commission, has become effective by and filed with the Commission and at incorporates by reference documents which the time it became effective, and as Company has filed in accordance with the provisions of the date hereofSecurities Exchange Act of 1934, as amended (the “Exchange Act”). The Company has prepared a Prospectus Supplement to the prospectus included in the Registration Statement complied referred to above, setting forth the terms of the offering and complies sale of the Investor Shares and additional information concerning the Company and its business and will promptly file the Prospectus Supplement with the Commission pursuant to Rule 415 under the Securities Act424(b). No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or any part thereof, has been issued and served on the Company, and no proceeding proceedings for that purpose has been initiated are pending or, to the knowledge of the Company’s knowledge, threatened by the Commission. On The form of prospectus included in the effective Registration Statement as of the date hereof, as amended or supplemented from time to time (including the Prospectus Supplement), is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. As of the close of business on November 26, 2014, at least a number of shares of Preferred Stock and Common Stock equal to the number of Investor Shares and Conversion Shares, respectively, were available for issuance pursuant to the Registration Statement, which permits the issuance of the Investor Shares and the Conversion Shares in the manner contemplated by this Agreement. Each part of the Registration Statement, when such part became or becomes effective, and the Registration Statement compliedProspectus and any amendment or supplement thereto, on the date of filing thereof with the Prospectus, the Preliminary Prospectus complied, Commission and at the date hereof and the date of the Closing, the Final Prospectus did or will comply, in all material respects comply with the all applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date Exchange Act. Each part of the Registration Statement, the Registration Statement when such part became or becomes effective, did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, not or will not, not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Preliminary Prospectus Statement or the Final Prospectus or to be filed as an exhibit exhibits to the Registration Statement that is not have been so described or filed as requiredfiled.
(8) The consolidated financial statements and financial schedules of the Company included or incorporated by reference in the Registration Statement and the Prospectus have been prepared in conformity with generally accepted accounting principles (except, with respect to the unaudited consolidated financial statements, for the footnotes and subject to customary audit adjustments) applied on a consistent basis, are consistent in all material respects with the books and records of the Company, and accurately present in all material respects the consolidated financial position, results of operations and cash flow of the Company and its subsidiaries as of and for the periods covered thereby.
(9) Neither the Company nor any of its subsidiaries has sustained since the respective dates of the latest audited financial statements included or incorporated by reference in the Registration Statement and Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in or contemplated by the Registration Statement and Prospectus; and, since the respective dates as of which information is given in the Registration Statement and Prospectus, other than as contemplated in this Agreement, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries.
(10) Other than as disclosed in the Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares, and no such proceedings are threatened in writing to the Company or, to the Company’s knowledge, have been contemplated by governmental or regulatory authorities or threatened by others.
(11) The Company and each of its subsidiaries have title to all the real property, and owns all other properties and assets, reflected as owned in the financial statements included or incorporated by reference in the Registration Statement and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or disclosed in the Company’s filings with the Commission or exhibits thereto, or which are not material to the Company and its subsidiaries taken as a whole. The Company and each of its subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the failure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(12) The Company has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax deficiency that has been, or to the knowledge of the Company could reasonably be expected to be, asserted against the Company or any of its properties or assets that would in the aggregate or individually reasonably be expected to have a Material Adverse Affect.
(13) There are no holders of securities of the Company having preemptive rights to purchase Common Stock. There are no holders or beneficial owners of securities of the Company having rights to registration thereof whose securities have not been previously registered or who have not waived such rights with respect to the registration of the Company’s securities on the Registration Statement, except where the failure to obtain such waiver would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(14) The issuance of the Investor Shares and the Conversion Shares will not obligate the Company to issue shares of Common Stock or other Common Stock Equivalents to any Person (other than the Investors), will not trigger any preemptive or other rights to subscribe for or purchase securities and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price or other right under any of such securities.
(15) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
(16) The Company is in compliance in all material respects with all listing and maintenance requirements of the Principal Trading Market. The issuance and sale of the Investor Shares and the issuance of the Conversion Shares will, at the time of such issuance and sale, comply in all material respects with and will not contravene the rules and regulations of the Principal Trading Market. The Conversion Shares, when issued, will be listed for trading on the Principal Trading Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alimera Sciences Inc)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as followscovenants to each Purchaser that:
(1a) The Company is duly organized, validly existing and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results State of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)Delaware.
(2b) No consentThis Agreement has been validly authorized, approvalexecuted and delivered by it and, assuming the due authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, execution and delivery and performance thereof by the Company of this Agreement or the issuance of the Investor SharesPurchaser, except for such consentsis a valid and binding agreement enforceable in accordance with its terms, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects subject to the description thereof contained in the Preliminary Prospectus general principles of equity and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal to bankruptcy or other similar laws affecting the enforcement of creditors’ rights to subscribe for or purchase securities of the Companygenerally. 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which the Company is a party which would prevent the Company from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Company is subject.
(c) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement; and the consummation of the transactions contemplated hereby are within the corporate powers of execution, delivery and performance by the Company and of this Agreement have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)Company.
(5d) The Investor Purchased Shares have been are duly and validly authorized for issuance and sale to the Purchaser by the Company, and and, when issued and delivered by the Company against payment therefor as contemplated by the Purchaser in accordance with the terms hereof, shall be validly issued and non-assessable and free from all preemptive or similar rights, taxes and encumbrances and the Purchased Shares shall be fully paid with the Purchaser being entitled to all rights accorded to a holder of Common Stock. Assuming the accuracy of the representations and warranties set forth in Section 3 of this Agreement, the Investor Shares will be validly issued, fully paid offer and nonassessable, and will conform to issuance by the description Company of the Common Stock contained in Purchased Shares is exempt from registration under the Preliminary ProspectusSecurities Act.
(6e) The execution and delivery of Company acknowledges that the Purchaser makes no representations or warranties as to any matter whatsoever except as expressly set forth in this Agreement do not, and the compliance or in any certificate delivered by the Purchaser to the Company in accordance with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Sharesthereof.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, on the date of the Prospectus, the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus), not misleading; and when filed with the Commission, the documents incorporated by reference in the Registration Statement, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable rules and regulations of the Commission thereunder. There is no material document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(8) The Company is not, and does not intend to conduct its business in a manner in which it would become, an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Gaming & Entertainment Inc.)
Company Representations, Warranties and Covenants. The Company hereby represents, warrants and agrees as followscovenants to the Purchaser that:
(1a) The Company is duly organized, validly existing and each of its subsidiaries listed on Schedule II hereto (the “Subsidiaries”) has been duly organized and has a valid existence and the authorization to transact business as a corporation under the laws of its jurisdiction of organization, with corporate power and authority to own and lease its properties and conduct its business as described in the Preliminary Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other the jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such jurisdictions wherein the failure to be so qualified and in good standing would not individually or in the aggregate have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”)organization.
(2b) No consentThis Agreement has been validly authorized, approvalexecuted and delivered by it and, assuming the due authorization, order, registration, filing or qualification of or with any such court or governmental, regulatory or self-regulatory agency or body is required for the valid authorization, execution, execution and delivery and performance thereof by the Company of this Agreement or the issuance of the Investor SharesPurchaser, except for such consentsis a valid and binding agreement enforceable in accordance with its terms, approvals, authorizations, registrations, filings or qualifications as may be required under the Securities Act or state securities or “blue sky” laws. The Company shall obtain the listing of the Investor Shares on the Nasdaq Global Market no later than the time of Closing.
(3) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus Supplement filed with the Commission by the Company on April 21, 2008 and as will be as set forth in the Final Prospectus under the caption “Capitalization” (other than for issuances after the dates thereof, if any, pursuant to employee benefit plans, or upon exercise of outstanding options or warrants, as the case may be). The Common Stock, including the Investor Shares, conforms, and in the case of the Final Prospectus, will conform, in all material respects subject to the description thereof contained in the Preliminary Prospectus general principles of equity and the Final Prospectus. All the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance, in all material respects, with all applicable laws. None of the outstanding shares of Common Stock of the Company were issued in violation of any preemptive rights, rights of first refusal to bankruptcy or other similar laws affecting the enforcement of creditors’ rights to subscribe for or purchase securities of the Companygenerally. 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 other than those described in the Preliminary Prospectus and those that will be described in the Final Prospectus.
(4) The execution, delivery and performance of this Agreement by the Company does not and will not conflict with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any agreement, contract or instrument to which the Company is a party which would prevent the Company from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Company is subject.
(c) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement; and the consummation of the transactions contemplated hereby are within the corporate powers of execution, delivery and performance by the Company and of this Agreement have been duly authorized by all necessary corporate action on the part of the Company.
(d) None of the Company and Filings filed with the Commission since August 9, 2019, as of their respective dates (or, if amended or superseded by a filing prior to the date of this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(5) The Investor Shares have been duly authorized by the Company, and when issued and delivered by the Company against payment therefor as contemplated by this Agreement, the Investor Shares will be validly issued, fully paid and nonassessable, and will conform to the description of the Common Stock contained in the Preliminary Prospectus.
(6) The execution and delivery of this Agreement do not, and the compliance by the Company with the terms hereof will not, (i) violate the Articles of Incorporation (as amended to date) of the Company or the By-Laws (as amended to date) of the Company, (ii) 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 their properties or assets are subject, or (iii) result in a violation of, or failure to be in compliance with, any applicable statute or any order, judgment, decree, rule or regulation of any court or governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except where such breach, violation, default or the failure to be in compliance would not individually or in the aggregate have a Material Adverse Effect or adversely affect the ability of the Company to issue and sell the Investor Shares.
(7) The Company meets the requirements for the use of Form S-3 under the Securities Act for the primary issuance of securities. The Registration Statement has been declared effective by the Commission and at the time it became effective, and as of the date hereof, the Registration Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective date of the Registration Statement, the Registration Statement complied, then on the date of the Prospectussuch filing), the Preliminary Prospectus complied, and at the date of the Closing, the Final Prospectus will comply, in all material respects with the applicable provisions of the Securities Act and the applicable rules and regulations of the Commission thereunder; on the effective date of the Registration Statement, the Registration Statement did not, on the date of the Preliminary Prospectus, the Preliminary Prospectus did not, and at the date of the Closing, the Final Prospectus and other information provided in writing to the Investors, when ready together, will not, contain an contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made (with respect to the Prospectus)made, not misleading; .
(e) The Company shall only use the Purchase Price as set forth in Exhibit A, and when filed with the CommissionCompany hereby covenants to the Purchaser the Company’s obligations as set forth in Exhibit A.
(f) The Company, or one its subsidiaries, shall create, produce, and execute three (3) esports events during each calendar year in 2020, 2021, and 2022, respectively, that will include the HyperX Esports Truck (as defined in Exhibit A hereto) at one or more of the Brookfield Property Malls (together, the documents incorporated by reference in the Registration Statement“HyperX Esports Truck Events” and each, the Prospectus and the Final Prospectus, taken as a whole, complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange ActHyperX Esports Truck Event”), and which the timing of such HyperX Esports Truck Events for each applicable rules and regulations of calendar year shall be mutually agreed upon in writing by the Commission thereunderparties hereto (e.g., electronically or otherwise, including, without limitation, e-mail confirmation). There is no material document of a character required to be described in Notwithstanding the Registration Statementforegoing, the Preliminary Prospectus parties hereto acknowledge and agree that in connection with the HyperX Esports Truck Events, each party shall perform the services and/or satisfy the obligations set forth in Exhibit B.
(g) The Purchased Shares are free and clear of any liens, charges, pledges, claims, restrictions, security interests or the Final Prospectus encumbrances or to be filed any option, warrant or agreement (collectively, “Encumbrances”) except as an exhibit to the Registration Statement that is not described or filed as requiredexpressly set forth in this Agreement.
(8) h) The Share Purchase Agreement entered into with the Company or any of its affiliates and Simon Property Group, Inc. (or any of its subsidiaries, including without limitation, Simon Equity Development, LLC) is notthe exclusive agreement setting forth the terms for the acquisition of any shares of the Company’s capital stock or any other securities of the Company or any options, warrants or other rights to acquire any such shares or securities, and does not intend to conduct its business in a manner in which it would become, an “investment company” is attached as defined in Section 3(a) Exhibit 10.9 of the Investment Company’s Registration Statement on Form S-1 available at xxxxx://xxx.xxx.xxx/Archives/xxxxx/data/1708341/000168316819002657/brac_ex1009.htm. To the Company’s knowledge, (i) Simon Equity Development, LLC held 758,252 shares of Common Stock of the Company Act as of 1940September 11, as amended2019, and the purchase price paid therefor by Simon Equity Development, LLC was $5,000,000, (ii) other than the foregoing Share Purchase Agreement, Simon Equity Development, LLC holds or held no options, warrants or other rights to acquire any shares of the Company’s capital stock or any other securities of the Company, and (iii) other than Simon Equity Development, LLC, neither Simon Property Group, Inc. nor any of its subsidiaries holds or held any shares of the Company’s capital stock or any other securities of the Company or any options, warrants or other rights to acquire any such shares or securities.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Esports Entertainment, Inc.)
