Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel. (b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities. (c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section. (d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto. (e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto. (f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto. (g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto. (h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto. (i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto. (j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel. (k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters. (l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus. (m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above. (n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above. (o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be; (ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and (iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect. (p) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder. (q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto. (r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 3 contracts
Samples: Dealer Manager Agreement, Dealer Manager Agreement (Xoma LTD /De/), Dealer Manager Agreement (Xoma LTD /De/)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, any Preliminary ProspectusUnits, Rights Shares, Warrants, Common Stock underlying the Warrants, the Pricing Disclosure Package, Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementLucosky Xxxxxxxx LLP, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Creatd, Inc.), Dealer Manager Agreement (Creatd, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on during the Rights Offering and prior to the Closing Date to the accuracy any Standby Placement Period, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or material limitation is necessary to make the statements therein not misleading and that has not been corrected or disclosed in trading instituted by one or more amendments to the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange Registration Statement or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesProspectus.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time The Company shall have delivered an executed Lock-Up Agreement from each of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form Company’s officers and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectusdirectors.
(me) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a there shall have been furnished to the Dealer-Manager the signed opinion and negative assurance letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementXxxxxxxx Xxxxxxxxx & Xxxxxx PC, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To their knowledge after reasonable investigation, the representations representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions to Closing set forth in this Agreement have been fulfilled;
iii. The Company has not sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make .
(g) No event has occurred at the statements therein, in light of the circumstances under which they were made, not misleading; and Company since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRight Offering.
(qi) You The Class A Common Stock shall then be listed and trading on Nasdaq and, prior to their issuance, Nasdaq shall have received lock-up letters, substantially in approved the form set forth in Exhibit A hereto, from each listing of the executive officers Rights and directors the Rights Shares, subject only to official notice of the Company set forth in Schedule IV heretoissuance.
(rj) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering or Standby Placement Period, as applicable, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Longeveron Inc.), Dealer Manager Agreement (Longeveron Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, any Preliminary ProspectusUnits, Rights Shares, Warrants, Common Stock underlying the Rights Shares and Warrants, the Pricing Disclosure Package, Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementOxxxxx Frome Wolosky LLP, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Cemtrex Inc), Dealer Manager Agreement (Cemtrex Inc)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager (i) a signed opinion and negative assurance letter (addressed to the Dealer-Manager) of Dxxxxx & Wxxxxxx LLP, counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Manager) of Life Science Law PC, counsel for the Company, and (iii) the signed opinion (addressed to the Dealer-Manager) of Pxxxxxxxxx PC, intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Mxxxx.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of the Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Txxxxx, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand each Subsidiary and board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have received lock-up approved the listing of the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Sintx Technologies, Inc.), Dealer Manager Agreement (Sintx Technologies, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, the Units, the Rights Shares (including, for the avoidance of doubt, any Preliminary ProspectusPre-Funded Warrants and the shares of Common Stock underlying such Pre-Funded Warrants), the Pricing Disclosure PackagePreferred Stock, the Conversion Shares, the Dividend Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Baker, Donelson, Bearman, Xxxxxxxx & Young LLPXxxxxxxxx, a letter PC, counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Husch Xxxxxxxxx, LLC, intellectual property counsel for the Company, dated the date hereof and in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You Concurrently with the execution of this Agreement and at Closing, the Company shall have received by or on furnished to the effective Dealer-Manager a letter of Xxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Registration Statement, on Company within the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as meaning of the effective date Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Registration Statement Commission, and (or one business day prior thereto)ii) stating, as of the Expiration Date date of the letter (or, with respect to matters involving changes or one business day developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior thereto) or to the Applicable Time (or one business day prior theretodate of the letter), as the case may be, from Ernst & Young LLP addressed conclusions and findings of such firm with respect to you which shall reaffirm the statements made in financial information and other matters specified by the letter referenced in (l) aboveDealer-Manager.
(nh) You The Company shall have received by or on furnished to the Closing DateDealer-Manager a certificate, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) of its principal executive officer and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied its principal financial officer stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required any development that would reasonably be expected to be included therein by a Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(pi) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further Closing, of its principal executive officer or principal financial officer certifying the factual information attached as an exhibit to such certificate;
(j) The Company shall have furnished to the Dealer-Manager and its counsel such additional documents, certificates and documents evidence as you shall the Dealer-Manager or its counsel may have reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderrequested.
(qk) You The Company and its Subsidiaries shall not have received lock-up letters, substantially sustained since the date of the latest audited financial statements included in the form set forth Prospectus any Material Adverse Change, the effect of which is, in Exhibit A hereto, from each the judgment of the executive officers Dealer-Manager, so material and directors of adverse as to make it impracticable or inadvisable to proceed with the Company set forth in Schedule IV heretoRights Offering.
(rl) The NASD FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the terms and arrangements in connection relating to the Rights Offering, including this Agreement.
(m) NYSE-MKT shall have approved the Rights Shares (including, for the avoidance of doubt, any shares of Common Stock underlying the Pre-Funded Warrants), the Conversion Shares and the Dividend Shares for listing, subject only to official notice of issuance, or, if NYSE MKT has not approved such Rights Shares, Common Stock underlying Pre-Funded Warrants, Conversion Shares and Dividend Shares, then such Rights Shares, Common Stock underlying Pre-Funded Warrants, Conversion Shares and Dividend Shares shall trade on the OTCQB; provided that the Pre-Funded Warrants will not be listed for trading on NYSE-MKT or the OTCQB.
(n) A market maker shall have filed Form 211 with respect to the offering of the New Notes. Preferred Stock.
(o) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Provectus Biopharmaceuticals, Inc.), Dealer Manager Agreement (Provectus Biopharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure Package, Rights Shares the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementLegal & Compliance, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of LLC, counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor the OTCQX Marketplace shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (IEG Holdings Corp), Dealer Manager Agreement (IEG Holdings Corp)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, Rights, Units, Rights Shares, Warrants and the Common Stock underlying the Warrants, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At On the time Closing Date, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Libertas Law Group, Inc., counsel for the Company, dated as of the execution Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of this Agreementthe opinions set forth on Exhibit A hereto.
(i) On the Closing Date, you there shall have received been furnished to the Dealer-Manager from Ernst & Young LLPthe Company Auditor a comfort letter dated the Closing Date, in form and substance satisfactory to the Dealer-Manager, covering the financial information included or incorporated by reference in the Prospectus and other customary matters and (ii) on the date of the Company’s filing with the Commission of a Form 10-Q for the quarterly period ended September 30, 2017 and, if applicable, the filing of a Form 8-K with the release of its earnings for the third quarter of 2017, or on a date shortly thereafter, there shall have been furnished to the Dealer-Manager from the Company Auditor a comfort letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to Dealer-Manager, covering the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained included or incorporated by reference in the Preliminary Prospectus or Prospectus, including the information in such Form 10-Q and Form 8-K, as applicable.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Manager a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Companycertificate, dated as of the Closing Date, signed of its Chief Financial Officer stating that: the amounts and percentages identified on the selected pages from the Final Prospectus (including pages from the documents incorporated by reference therein) attached to such certificate as Exhibit A have been compared and agreed with corresponding figures in, or confirmed for arithmetic accuracy based on figures included in the Company’s account records or in reports, schedules or other analyses prepared by the Company from its accounting records, or the Company’s operational records.
(g) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, of its Chief Executive Officer and Chief Financial Officer of the Companyor President, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(h) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company Neither FINRA nor the OTC Market shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Giggles N' Hugs, Inc.), Dealer Manager Agreement (Giggles N' Hugs, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxx & Young Xxxxxxx LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxx Xxxxxxx, intellectual property counsel for the Company, dated the date hereof and information in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The NASDAQ shall have approved the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance, and the Company shall have furnished applied to you such further certificates and documents as you shall reasonably request (including certificates of officers of list the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Warrants on NASDAQ.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Cytori Therapeutics, Inc.), Dealer Manager Agreement (Cytori Therapeutics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, the Units, the Rights Shares (including, for the avoidance of doubt, any Preliminary ProspectusPre-Funded Warrants and the shares of Common Stock underlying such Pre-Funded Warrants), the Pricing Disclosure PackageRights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxx Xxxxxxxx LLP counsel for the Company, a letter dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxx Xxxx, LLC, intellectual property counsel for the Company, dated the date hereof and information in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of EY, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) of its principal executive officer and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied its principal financial officer stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager and its counsel such further additional documents, certificates and documents evidence as you shall the Dealer-Manager or its counsel may have reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderrequested.
(qi) You The Company and its Subsidiaries shall not have received lock-up letters, substantially sustained since the date of the latest audited financial statements included in the form set forth Prospectus any Material Adverse Change, the effect of which is, in Exhibit A hereto, from each the judgment of the executive officers Dealer-Manager, so material and directors of adverse as to make it impracticable or inadvisable to proceed with the Company set forth in Schedule IV heretoRights Offering.
(rj) The NASD NASDAQ shall have confirmed that it has not raised any objection approved the Rights Shares and Rights Warrants for listing, subject only to official notice of issuance and, with respect to the fairness and reasonableness Rights Warrants, confirmation that a sufficient number of Rights have been exercised to cause a sufficient number of Rights Warrants to be issued to the terms and arrangements in connection with number of holders necessary to meet the offering listing standards of NASDAQ Rule 5515, as applicable; provided that the New Notes. Pre-Funded Warrants will not be listed for trading on NASDAQ.
(k) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Onconova Therapeutics, Inc.), Dealer Manager Agreement (Onconova Therapeutics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure Package, Rights Shares the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementGracin & Mxxxxx, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of LLP, counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor the Nasdaq Capital Market shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Heat Biologics, Inc.), Dealer Manager Agreement (Heat Biologics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the opinion of the Dealer-Managers) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the Dealer-Managers’ reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Managers the signed opinion (addressed to the Dealer-Managers) of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP counsel for the Company, a letter dated as of such date, the date hereof and in form and substance satisfactory to you containing statements and information counsel for the Dealer-Managers, to the effect of the type ordinarily included opinions set forth on Exhibit A hereto.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Managers the signed opinion (addressed to the Dealer-Managers) of Xxxxxx & Xxxxxx LLP, intellectual property counsel for the Company, dated the date hereof and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Managers, to the effect of the opinions set forth on Exhibit B hereto.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Managers a letter of Xxxxxx, addressed to the Dealer-Managers and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Managers.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Managers a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Shares and Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance and, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness Rights Warrants, confirmation that a sufficient number of Rights have been exercised to cause a sufficient number of Rights Warrants to be issued to meet the terms and arrangements in connection with the offering listing standards of the New Notes. NASDAQ Rule 5515, as applicable.
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies the Dealer-Managers to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Opexa Therapeutics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementOxxxxx Frome Wolosky LLP, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its President and Chief Executive Officer and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor the NasdaqCM shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering issuance.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Libertas Law Group, a letter Inc., counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) [Reserved.]
(f) Concurrently with the execution of this Agreement and information at Closing, the Company shall have furnished to the Dealer-Manager a letter of Wxxxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) the representations The representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NYSE American shall have furnished approved the Rights Shares [and Rights Warrants] for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance [and, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness Rights Warrants, confirmation that a sufficient number of Rights have been exercised to cause a sufficient number of Rights Warrants to be issued to the terms and arrangements in connection with number of holders necessary to meet the offering listing standards of the New Notes. NYSE American, as applicable].
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At Concurrently with the time execution of this Agreement and on the Closing date, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Libertas Law Group, Inc., counsel for the Company, dated the date hereof and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) Concurrently with the execution of this Agreement, you the Company shall have received from Ernst & Young LLP, furnished to the Dealer-Manager a letter of Mxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of such date, in form and substance satisfactory to you containing statements and information the date of the type ordinarily included letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in accountants’ “comfort letters” the Prospectus, as of a date not more than five days prior to underwriters the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Manager a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Companycertificate, dated as of the Closing Datedate, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company NasdaqCM shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Chanticleer Holdings, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations of the Dealer-Manager hereunder are subject to the accuracy, as provided herein shall be subject of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company and shall not have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusCharter Amendment, the Pricing Disclosure PackageRights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this AgreementClosing, you there shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect been furnished to the financial statements Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of each of Schmiedeskamp, Robertson, Nen & Xxxxxxxx LLP and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
DLA Piper LLP (m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior theretoUS), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Dateand in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, signed by the Company shall have furnished to the Dealer-Manager a “comfort letter” of BKD, LLP, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) containing customary provisions for transactions of this type.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof, of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. The Charter Amendment shall have become effective in accordance with its terms under the representations laws of the State of Delaware;
ii. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects, as if made on and as of ;
iii. Subsequent to the Closing Date or such other date respective dates as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of information is given in the Registration Statement and the Prospectus, there has not been issued and no proceedings for that purpose any Material Adverse Change or any development involving a prospective Material Adverse Change; and
iv. They have been instituted or are pending or threatened under the Securities Act;
(iii) when carefully examined the Registration Statement became effective and at the Applicable TimeProspectus and, and at all times subsequent thereto up to the date of such certificate, in their opinion (A) the Registration Statement, as of the Pricing Disclosure PackageEffective Date, and the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretodate thereof, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date or the date of the Prospectus, and as applicable, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus.
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinAll opinions, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestcounsel for the Dealer-Manager.
Appears in 1 contract
Samples: Dealer Manager Agreement (Mercantile Bancorp, Inc.)
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary the Prospectus, the Prospectusany Incorporated Document, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given that described in the Prospectus (exclusive of any supplement thereto) (ia) any material adverse change or development in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company whether and its subsidiaries considered as one enterprise, (b) any obligation, direct or not arising contingent, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, or (iic) any material adverse change in the financial markets in capital stock or outstanding indebtedness of the United States Company, (d) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (e) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained that either individually or in the international financial marketsaggregate, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international politicalthe Dealer Manager's reasonable judgment, financial or economic conditions, which in each case the effect of which is such as to make are material and adverse and that makes it, in the Dealer Manager's judgment impracticable to recommend that holders of Debentures participate in the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading Exchange Offer on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services terms and in the United States, or (iv) manner contemplated in the declaration of a banking moratorium by either Federal or New York authoritiesRegistration Statement.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Exchange Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Folex & Riendel LLPXardxxx, outside counsel xxunsel for the Company, dated the Closing Date addressed to youDate, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm to the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations and warranties laws of the Company in this Agreement are true and correct in all material respects, as if made on and as state of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may beIdaho;
(ii) no stop order refusing or suspending The Company has the effectiveness of corporate power and corporate authority to enter into this Agreement, the Registration Statement has been Exchange Agent Agreement, the Information Agent Agreement, and the Indenture under which the Exchange Notes will be issued and no proceedings for that purpose have been instituted or are pending or threatened under pursuant to the Securities ActExchange Offer;
(iii) when the Registration Statement became effective and at the Applicable TimeThis Agreement, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(p) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.its
Appears in 1 contract
Samples: Dealer Manager Agreement (Coeur D Alene Mines Corp)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager's reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager's opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager's opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of DLA Piper LLP (US), a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxx Xxxxxxx, intellectual property counsel for the Company, dated the date hereof and information in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of KPMG, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Shares and Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance and, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness Rights Warrants, confirmation that a sufficient number of Rights have been exercised to cause a sufficient number of Rights Warrants to be issued to the terms and arrangements in connection with number of holders necessary to meet the offering listing standards of the New Notes. NASDAQ Rule 5515, as applicable.
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cytori Therapeutics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior continue to be effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company and shall not have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At Concurrently with the time execution of this Agreement and on the Closing date, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxx L.L.P., counsel for the Company, dated the date hereof and addressing the matters indicated on Exhibit A hereto, which opinion shall be subject to such limitations and qualifications as such counsel deems appropriate, and which opinion may rely on opinions of other counsel.
(e) Concurrently with the execution of this Agreement, you the Company shall have received from Ernst & Young LLP, furnished to the Dealer-Manager a letter of KPMG, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of such date, in form and substance satisfactory to you containing statements and information the date of the type ordinarily included letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in accountants’ “comfort letters” the Prospectus, as of a date not more than five days prior to underwriters the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Manager a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Companycertificate, dated as of the Closing Datedate, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company and its Subsidiaries taken as if made on a whole have not sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement , as of the Closing Date or such other date as of which any representation speaks, as the case may beEffective Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateProspectus Supplement, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretofiling, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus that was not set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included or incorporated into the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company OTC Markets Group, Inc. shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of approved the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderSeries B Rights Shares for quotation.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company and shall not have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusCharter Amendment, the Pricing Disclosure PackageRights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Gxxxxxx Procter LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information counsel for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Dateand in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, signed the Company shall have furnished to the Dealer-Manager a letter of RBSM, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof, of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. The Charter Amendment shall have become effective in accordance with its terms under the representations laws of the State of Utah;
ii. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects, as if made on and as of ;
iii. Subsequent to the Closing Date or such other date respective dates as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of information is given in the Registration Statement and the Prospectus, there has not been issued and no proceedings for that purpose any Material Adverse Change or any development involving a prospective Material Adverse Change; and
iv. They have been instituted or are pending or threatened under the Securities Act;
(iii) when carefully examined the Registration Statement became effective and at the Applicable TimeProspectus and, and at all times subsequent thereto up to the date of such certificate, in their opinion (A) the Registration Statement, as of the Pricing Disclosure PackageEffective Date, and the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretodate thereof, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date or the date of the Prospectus, and as applicable, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus.
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company Bulletin Board shall have furnished to you such further certificates approved the Rights, the Rights Shares and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Warrants for quotation.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestcounsel for the Dealer-Manager.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst been furnished to the Dealer-Manager (i) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxx Xxxxxx Xxxxxxx & Young Xxxxxxx LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing, and (ii) the signed opinion (addressed to the Dealer-Manager) of Xxxxxx, LLP, intellectual property counsel for the Company, dated the date hereof and as of such Closing, each of (i) and (ii) in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the certificate of the type ordinarily included Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates approved the shares of officers Common Stock issuable upon conversion of the Company) as to the accuracy Rights Shares and exercise of the representations and warranties Rights Warrants for listing, subject only to official notice of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (ContraVir Pharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary the Prospectus, the Prospectusany Incorporated Document, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given that described in the Prospectus (exclusive of any supplement thereto) (ia) any material adverse change or development in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company whether and its subsidiaries considered as one enterprise, (b) any obligation, direct or not arising contingent, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, or (iic) any material adverse change in the financial markets in capital stock or outstanding indebtedness of the United States Company, (d) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (e) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained that either individually or in the international financial marketsaggregate, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international politicalthe Dealer Manager's reasonable judgment, financial or economic conditions, which in each case the effect of which is such as to make are material and adverse and that makes it, in the Dealer Manager's judgment impracticable to recommend that holders of Debentures participate in the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading Exchange Offer on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services terms and in the United States, or (iv) manner contemplated in the declaration of a banking moratorium by either Federal or New York authoritiesRegistration Statement.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Exchange Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Folex & Riendel LLPXardxxx, outside counsel xxunsel for the Company, dated the Closing Date addressed to youDate, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm to the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations and warranties laws of the Company in this Agreement are true and correct in all material respects, as if made on and as state of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may beIdaho;
(ii) The Company has the corporate power and corporate authority to enter into this Agreement, the Exchange Agent Agreement, the Information Agent Agreement, and the Indenture under which the Exchange Notes will be issued pursuant to the Exchange Offer;
(iii) This Agreement, the performance by the Company of its obligations hereunder, the Exchange Offer, the issuance and delivery by the Company of the Exchange Notes pursuant to the Indenture and consummation of the Exchange Offer have been duly authorized by all necessary corporate action on the part of the Company; this Agreement has been duly executed and delivered by the Company;
(iv) The Exchange Agent Agreement and the Information Agent Agreement have been duly authorized, executed and delivered by the Company;
(v) The Company is not, or after giving effect to the Exchange Offer, will not be, directly or indirectly "controlled" by an "investment company," as such terms are defined in the 1940 Act;
(vi) The Registration Statement has been filed under the Securities Act prior to the Commencement Date and, to such counsel's knowledge, no refusal order preventing effectiveness, and after effectiveness, no stop order refusing or suspending the effectiveness effectiveness, of the Registration Statement has been issued and to such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iiivii) when the The Registration Statement became effective and at the Applicable TimeProspectus, and at all times subsequent each amendment or supplement thereto up (other than the financial statements, including supporting schedules, and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required complied as to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and form in all material respects conformed to with the requirements of the Securities Act and the applicable Rules and Regulations thereunder thereunder;
(viii) The Schedule TO, and each amendment or supplement thereto, and the documents required by Item 12 thereof (other than the financial statements, including supporting schedules, and the financial data derived therefrom as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Exchange Act and the applicable Rules and Regulations thereunder;
(ix) The information in the Prospectus under the captions "The Exchange Offer," "Description of the Commission thereunderDebentures," "Description of Exchange Notes" and "Description of the Capital Stock," insofar as such statements purport to constitute a summary of the legal matters, as the case may be; the Registration Statement, and any amendment documents or supplement thereto, did not and does not include any untrue statement of a material fact or omit proceedings referred to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, fairly summarize in light of all material respects the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required matters referred to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(p) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.;
Appears in 1 contract
Samples: Dealer Manager Agreement (Coeur D Alene Mines Corp)
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date Date, to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counselDealer Manager's Counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given that described in the Prospectus (exclusive of any supplement thereto) (ia) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, the condition (financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e)earnings, (f)operations, (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (business or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterpriseCompany, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, ; or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained that either individually or in the aggregate, in the Dealer Manager's reasonable judgment, are material and which has a Material Adverse Effectadverse and that makes it, in the Dealer Manager's judgment impracticable to recommend that holders of Existing Notes participate in the Exchange Offer on the terms and in the manner contemplated in the Registration Statement.
(pc) The Company shall have furnished to you such further certificates All corporate proceedings and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements legal matters in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.this
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementWexler, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of Burkhart, Xxxxxxxxxx & Xxxxx, LLP, counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its President and Chief Executive Officer and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor the OTCQB marketplace shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxx & Young Xxxxxxx LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxx Xxxxxxx, intellectual property counsel for the Company, dated the date hereof and information in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Shares and Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance and, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness Rights Warrants, confirmation that a sufficient number of Rights have been exercised to cause a sufficient number of Rights Warrants to be issued to the terms and arrangements in connection with number of holders necessary to meet the offering listing standards of the New Notes. NASDAQ Rule 5515, as applicable.
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cytori Therapeutics, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Dealer-Manager Warrant, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Qashu & Young Xxxxxxxxxxxx LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements and information counsel for the Dealer-Manager, to the effect of the type ordinarily included opinions set forth on Exhibit A hereto.
(e) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of Xxxxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof, of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company NasdaqCM shall have furnished approved the Rights and the Common Stock underlying the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance, as to applicable. The OTC Bulletin Board shall have approved the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Shares for quotation.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestcounsel for the Dealer-Manager.
Appears in 1 contract
Samples: Dealer Manager Agreement (Reeds Inc)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on during the Rights Offering and prior to the Closing Date to the accuracy any Standby Placement Period, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Offering Statement shall have become qualified and the Offering Circular shall have been timely filed prior with the Commission in accordance with the Securities Act; (ii) all post-qualification amendments to the Commencement Date and Offering Statement shall have become qualified; (iii) no stop order refusing suspending the effectiveness thereof qualification of the Offering Statement or any amendment or supplement thereto shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Offering Statement or the Prospectus, or other Exchange Offer Materials Offering Circular or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Offering Statement or the Offering Circular or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or material limitation is necessary to make the statements therein not misleading and that has not been corrected or disclosed in trading instituted by one or more amendments to the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange Offering Statement or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesOffering Circular.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the ProspectusPIK Shares, other Exchange Offer Materials or otherwisethe Offering Statement and the Offering Circular, and all other legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementBxxxxxxxxx Hyatt Fxxxxx Sxxxxxx, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of LLP, counsel for the Company, dated as of the Closing DateDate and in form and substance satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a letter of BDO USA, signed by LLP, addressed to the Chief Executive Officer Dealer-Manager and Chief Financial Officer dated as of the Company, certifying that, and you shall be satisfied that:
effective date of this Agreement: (i) confirming that it is the representations and warranties independent registered public accountant of the Company within the meaning of the Securities Act and is in this Agreement are true compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and correct in all material respectsapplicable rules of the Commission, as if made on and (ii) providing negative assurances, as of the Closing Date or such other date as of which any representation speaksthe letter, as that the case may beinterim financial statements included in the Offering Statement for the three and six months ended March 31, 2019 and June 30, 2019, respectively, are in conformity with United States’ generally accepted accounting principles (GAAP) and the Company has complied with all applicable accounting requirements of the agreements Securities Act and satisfied all the conditions Exchange Act and the related rules and regulations adopted by the SEC.
(f) On the date of this Agreement and on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;, the Company shall have furnished to the Dealer-Manager certificates of the Company’s Chief Financial Officer, dated the respective dates of their delivery and addressed to the Dealer-Manager, with respect to certain financial data contained in each of the Offering Statement and the Offering Circular, providing “management comfort” with respect to such information, in form and substance satisfactory to counsel for the Dealer-Manager.
(iig) no stop order refusing or suspending The Company shall have furnished to the effectiveness Dealer-Manager a certificate, dated as of the Registration Statement has been issued Closing Date, of its Chief Executive Officer and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;its Chief Financial Officer stating that:
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificatei. To their knowledge after reasonable investigation, the Registration Statementrepresentations, the Pricing Disclosure Packagewarranties, the Prospectus, covenants and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations agreements of the Commission thereunder, as the case may be, Company hereof are true and correct in all material respects conformed respects;
ii. The conditions to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be Closing set forth in an amended or supplemented Prospectus which has not this Agreement have been so set forth; andfulfilled;
(iv) subsequent iii. Subsequent to the respective dates as of which information is given in the Registration Offering Statement and Prospectus and up the Offering Circular, neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding; and
iv. Subsequent to the date respective dates as of such certificate, which information is given in the Offering Statement and except as disclosed thereinthe Offering Circular, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change.
(ah) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of Neither the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or nor any of its subsidiaries which has been Subsidiaries shall have sustained or will have been sustained and which has a since the date of the latest audited financial statements included in the Offering Circular any Material Adverse EffectChange, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the Rights Offering.
(pi) The Company FINRA shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. Dealer-Manager’s engagement hereunder.
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering or Standby Placement Period, as applicable, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer- Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer- Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to be effective and the Commencement Date Base Prospectus, the Time of Sale Prospectus and no stop order refusing the effectiveness thereof Prospectus Supplements shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus Supplements or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the Prospectus Supplements or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement, any Preliminary the Base Prospectus, the Pricing Disclosure PackageTime of Sale Prospectus, the Prospectus, other Exchange Offer Materials or otherwiseProspectus Supplements, and all other legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxx Xxxxxxxxxx & Young Xxxxx LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing and a negative assurance letter, and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the signed certificate (addressed to the Dealer-Manager) of Xxxxx Xxx, Chief Executive Officer of the type ordinarily included Company with respect to certain intellectual property matters dated the date hereof and as of Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of Xxxxxx LLP, addressed to the Dealer- Manager and dated the date hereof and as of Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) hereof and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing DateClosing, signed by the of its Chief Executive Officer and Chief its Principal Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective Statement, the Base Prospectus, the Time of Sale Prospectus and at the Applicable TimeProspectus Supplements, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the Prospectus Supplements and at all times subsequent any amendments or supplements thereto up to and, in their opinion (A) as of the date of such certificateEffective Date, the Registration Statement, the Pricing Disclosure PackageBase Prospectus, the Time of Sale Prospectus, the Prospectus Supplements and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, thereto did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, there has occurred no event required to be set forth in an amended the Base Prospectus, the Time of Sale Prospectus, or supplemented the Prospectus which Supplements and has not been so set forth; andbeen.
(ivh) subsequent to Neither the respective dates as Company nor any of which information is given in the Registration Statement and Prospectus and up to its Subsidiaries shall have sustained since the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change the latest audited financial statements included in the financial conditionProspectus Supplements any Material Adverse Change, businessthe effect of which is, prospects, property, operations or results of operations in the judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Warrants and the shares of Common Stock underlying the Rights Shares and the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You FINRA shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company shall, if requested by the Dealer-Manager, make or authorize Dealer-Manager’s counsel to make on the Company’s behalf, any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Rights Offering and pay all filing fees required in connection with therewith.
(k) The Company shall have furnished to the offering of Dealer-Manager such further information, certificates and documents as the New NotesDealer-Manager may reasonably request. All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Inpixon)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the opinion of the Dealer Manager) and to the following additional conditions:
(a) Cleared funds representing the Minimum Amount shall have been raised by the Company and deposited in the designated account of the Subscription Agent, with written evidence thereof provided to the Dealer Manager.
(i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer Manager and complied with to the Dealer Manager’s reasonable satisfaction of your counselsatisfaction.
(bc) After execution The Dealer Manager shall not have been advised by the Company or shall have discovered and delivery disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer Manager’s opinion, or in the opinion of counsel to the Dealer Manager, is material, or omits to state a fact which, in the Dealer Manager’s opinion, or in the opinion of counsel to the Dealer Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Dealer Manager Warrant, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer Manager the signed opinion (addressed to the Dealer Manager) of Xxxxxxxxx Traurig LLP counsel for the Company, dated the date hereof and in form and substance satisfactory to counsel for the Dealer Manager, to the effect of the opinions set forth on Exhibit A hereto.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer Manager a letter of D&T, addressed to the Dealer Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer Manager.
(g) The Company shall have furnished to the Dealer Manager a certificate, dated the date hereof, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
(i) To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
(ii) The conditions set forth in this Sections 10 have been fulfilled;
(iii) Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(cv) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(h) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company OTCBB shall have furnished approved the Rights and the Rights Shares for quotation, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderapplicable.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer Manager. The Company will furnish you with If any of the conditions specified in this Section 11 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer Manager. Any such number cancellation shall be without liability of conformed copies the Dealer Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Incorporated Document or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any amendment or supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Plus Cash Notes or to enforce contracts for the exchange and/or sale of the New Plus Cash Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National MarketNasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Marketon Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Plus Cash Notes issuable in accordance with the Exchange Offer, shall have been executed completed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel Xxxxxxxx LLP, outside counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxx Xxxxxxx Xxxx & XxxxxxxXxxxxxx and Xxxxxxxx, special Bermuda patent counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (je) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) Delaware upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kf) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(lg) At the time of the execution of this Agreement, you shall have received from Ernst & Young KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2002 and 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(mh) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lg) above.
(ni) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lg) and (mh) above.
(oj) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying on behalf of the Company that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, and the Incorporated Documents contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries subsidiary considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries subsidiary considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries subsidiary considered as one enterprise, incurred by the Company or its subsidiariessubsidiary, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries subsidiary considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries subsidiary which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a Material Adverse Effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pk) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by peformance of the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(ql) You shall have received lock-up letters, dated the date of this Agreement, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(rm) You shall have received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Plus Cash Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the each Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young been furnished to the Dealer-Managers (i) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxxx Xxxxxxx LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing, and (ii) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxxxx X’Xxxxxx, intellectual property counsel for the Company, dated the date hereof and as of such Closing, each of (i) and (ii) in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at, there shall have been furnished to the Dealer-Managers the certificate of the type ordinarily included Company’s [ ] with respect to certain regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Managers.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers a letter of Ernst & Young LLP, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two business days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Managers.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Managers a bring-down comfort lettercertificate, dated as of the effective date such Closing, of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The That the Company remains listed on NASDAQ and that NASDAQ shall have furnished approved the Rights Shares and the shares of Common Stock underlying the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such cancellation shall be without liability of any Dealer-Manager to the Company. Notice of such cancellation shall be given to the Company will furnish you in writing, or by telephone and confirmed in writing.
(k) That the Company has retained a Subscription Agent for the Rights Offering reasonably acceptable to the Dealer-Managers, to perform services in connection with the Rights Offering that are customary for such agents.
(l) From the date hereof until ninety (90) days after the Closing, the Company (along with any Subsidiaries that the Company may have following the date hereof) shall not enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents other than (i) the issuance of securities in the Rights Offering, (ii) an Exempt Issuance or (iii) as approved in advance in writing by Maxim. For purposes of this Section 9(l), “Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and “Exempt Issuance” means the issuance of (a) shares of Common Stock, restricted stock, restricted stock units or Common Stock Equivalents to employees, officers, directors or consultants of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the conversion of the Rights Shares and/or exercise of the Rights Warrants issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of conformed copies such securities or to decrease the exercise price, exchange price or conversion price of such opinionssecurities (other than in connection with automatic price resets, certificatesstock splits, letters adjustments or combinations as set forth in such securities) or to extend the term of such securities and documents(c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as you “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the 90-day lock-up period set forth herein, and provided that any such issuance shall reasonably requestonly be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
Appears in 1 contract
Samples: Dealer Manager Agreement (DelMar Pharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager , is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager (i) a signed opinion and negative assurance letter (addressed to the Dealer-Manager ) of Maslon LLP, counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Manager) of Xxxxxxxxxx & Xxxxx, P.A., intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Maxim.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of an executive officer of the Company with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Xxxxxx, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of an executive officer of the Company stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NYSE American and NYSE American shall have received lock-up approved the listing of the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificatesor by telephone and confirmed in writing.
l) That the Company has retained a Subscription Agent for the Rights Offering reasonably acceptable to the Dealer-Manager, letters and documents, as you shall reasonably requestto perform services in connection with the Rights Offering that are customary for such agents.
Appears in 1 contract
Samples: Dealer Manager Agreement (Navidea Biopharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, any Preliminary ProspectusUnits, Rights Shares, Warrants, Common Stock underlying the Rights Shares and Warrants, the Pricing Disclosure Package, Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementLibertas Law Group, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of Inc., counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Chanticleer Holdings, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxx Xxxx & Young Xxxxxxxx LLP, a letter counsel for the Company, dated as of such datethe date hereof, and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the certificates of the type ordinarily included Company’s Chief Executive Officer, Chief Financial Officer and General Counsel and the Vice President, Regulatory, Quality and Clinical Affairs to the Company with respect to certain intellectual and regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) hereof and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Datesuch Closing, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Shares and the shares of Common Stock underlying the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement
Conditions of Dealer-Manager’s Obligations. Your obligations as ------------------------------------------ provided herein shall be subject at all times on and prior to the Closing Date Date, to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary the Prospectus, the Prospectusany Incorporated Document, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counselDealer Manager's Counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given that described in the Prospectus (exclusive of any supplement thereto) (ia) any material adverse change or development in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company whether and its subsidiaries considered as one enterprise, (b) any obligation, direct or not arising contingent, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, or (iid) any material adverse change in the financial markets in capital stock or outstanding indebtedness of the United States Company, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained that either individually or in the international financial marketsaggregate, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international politicalthe Dealer Manager's reasonable judgment, financial or economic conditions, which in each case the effect of which is such as to make are material and adverse and that makes it, in the Dealer Manager's judgment impracticable to recommend that holders of Existing Notes participate in the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading Exchange Offer on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services terms and in the United States, or (iv) manner contemplated in the declaration of a banking moratorium by either Federal or New York authoritiesRegistration Statement.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Exchange Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counselDealer Manager's Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLPWilson, outside Sonsini, Xxxxxxxx and Xxxxxx, counsel for the Company, dated the Closing Date addressed to youDate, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxxrespectively, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm to the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations and warranties laws of the state of Delaware;
(ii) The Company in has the corporate power and corporate authority to enter into this Agreement, the Exchange Agent Agreement, the Information Agent Agreement, and the Indenture under which the Exchange Notes will be issued pursuant to the Exchange Offer;
(iii) This Agreement, the performance by the Company of it obligations hereunder, the Exchange Offer, the issuance and delivery by the Company of the Exchange Notes pursuant to the Indenture and consummation of the Exchange Offer has been duly authorized by all necessary corporate action on the part of the Company; this Agreement are true has been duly executed and correct in all material respectsdelivered by the Company and, as if made on assuming due authorization, execution and as delivery by you, is a valid and binding agreement of the Closing Date Company;
(iv) The Exchange Agent Agreement and the Information Agent Agreement have been duly authorized, executed and delivered by the Company;
(v) The Company is not, or such other date as of which any representation speaksafter giving effect to the Exchange Offer, as the case may will not be, and the Company is not directly or indirectly "controlled" by, an "investment company," as such terms are defined in the 1940 Act;
(vi) The Registration Statement has complied with all been filed under the agreements and satisfied all the conditions on its part to be performed or satisfied at or Securities Act prior to the Closing DateCommencement Date and, as the case may be;
(ii) to such counsel's knowledge, no refusal order preventing effectiveness, and after effectiveness, no stop order refusing or suspending the effectiveness effectiveness, of the Registration Statement has been issued and to such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iiivii) when the The Registration Statement became effective and at the Applicable TimeProspectus, and at all times subsequent each amendment or supplement thereto up (other than the financial statements, including supporting schedules, and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required complied as to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and form in all material respects conformed to with the requirements of the Securities Act and the Rules applicable rules and Regulations thereunder regulations thereunder;
(viii) The Schedule TO, and each amendment or supplement thereto, and the documents required by Item 12 thereof (other than the financial statements, including supporting schedules, and the financial data derived therefrom as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Exchange Act and the applicable Rules rules and Regulations regulations thereunder;
(ix) The information in the Prospectus under the captions "The Exchange Offer," "Description of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(p) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Existing Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.,"
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this Agreementby Ellenoff Xxxxxxxx & Schole LLP, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a letter of the Auditors, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its President and Chief Executive Officer and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company NasdaqCM shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (ITUS Corp)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer- Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer- Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the each Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young been furnished to the Dealer-Managers the signed opinion (addressed to the Dealer-Manager) of Cxxxxx LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing, and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Managers the signed opinion (addressed to the Dealer-Manager) of Cxxxxx LLP, counsel for the Company with respect to certain intellectual matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for the Dealer-Managers.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers the certificate (addressed to the Dealer-Manager) of its General Counsel/ Compliance and Privacy Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for the Dealer-Managers.
(g) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers a letter of MHM, addressed to the Dealer- Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Managers.
(mh) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Managers a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) hereof and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Datesuch Closing, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pj) The Company Nasdaq shall have furnished approved the shares of Common Stock underlying the Rights Shares and the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qk) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) a. The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After b. The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager , is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c. All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d. Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager a signed opinion and negative assurance letter (addressed to the Dealer-Manager ) of Maslon LLP, counsel for the Company, dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Oak Ridge.
e. Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of an executive officer of the Company with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Oak Ridge.
f. Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Wipfli, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g. The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of an executive officer of the Company stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(p) h. The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i. Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(q) You j. The Common Stock shall then be listed and trading on NYSE American and NYSE American shall have received lock-up approved the listing of the Right Shares and the shares Common Stock issuable upon exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k. All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificatesor by telephone and confirmed in writing.
l. That the Company has retained a Subscription Agent for the Rights Offering reasonably acceptable to the Dealer-Manager, letters and documents, as you shall reasonably requestto perform services in connection with the Rights Offering that are customary for such agents.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The the Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The the Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Ballard Spahr Andrews & Riendel Ingersoll, LLP, outside counsel for the Company, dated the Closing Date addressed to youxxx Xxxxxxx Xxxx, xxdrexxxx xx xou, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx Hamilton, Brook, Smith & XxxxxxxReynolds, special Bermuda P.C., patent counsel for to the Company, dated the Closing Date addressed xxxxx xxx Xxxsixx Xxte, xxxxxxxed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. XxxxxxxxCovington & Burling, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to Xxxx, xxxresxxx xx you, substantially to the effect set forth in the form of Exhibit B-7 B-3 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (jf) may rely as to questions of law not involving the laws of the United States of America (or in the case Commonwealth of (d) and (j), the State of New York) Pennsylvania upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kg) You shall have received on the Closing Date an opinion of Testa, Hurwitz & Thibeault, LLP, and Shearman & Sterling LLP in form and substance satisfactory to yousxxxxxncx xxxxxfacxxxx xx xou, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(lh) At the time of the execution of this Agreement, you shall have received from Ernst Deloitte & Young Touche, LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 2001 and 2004 2002 and the nine six months ended September 30, 2005 2002 contained in the Prospectus.
(mi) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst Deloitte & Young Touche, LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lh) above.
(nj) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst Deloitte & Young Touche LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lh) and (mi) above.
(ok) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a material adverse effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pl) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(qm) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(rn) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your obligations as ------------------------------------------ provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Incorporated Document or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the reasonable judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Plus Cash Notes or to enforce contracts for the exchange and/or sale of the New Plus Cash Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Marketthe Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Marketthe Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Plus Cash Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Xxxxx, Xxxxxxx & Riendel Xxxxxxxxx, LLP, outside counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda intellectual property counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (je) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) Delaware upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kf) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(lg) At the time of the execution of this Agreement, you shall have received from Ernst & Young KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 20022001 and 2002 and the six months ended June 30, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(mh) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lg) above.
(ni) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lg) and (mh) above.
(oj) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, and the Incorporated Documents contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a material adverse effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pk) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(ql) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(rm) You shall have received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Plus Cash Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager (i) a signed opinion and negative assurance letter (addressed to the Dealer-Manager) of Dxxxxx & Wxxxxxx LLP, counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Manager) of Life Science Law PC, counsel for the Company, and (iii) the signed opinion (addressed to the Dealer-Manager) of Polsinelli PC, intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Maxim.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of the Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Txxxxx, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand each Subsidiary and board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have received lock-up approved the listing of the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Sintx Technologies, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Offering , of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or material limitation is necessary to make the statements therein not misleading and that has not been corrected or disclosed in trading instituted by one or more amendments to the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange Registration Statement or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesProspectus.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageUnits, the Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the On each Closing Date, a there shall have been furnished to the Dealer-Manager the signed opinion and negative assurance letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementXxxxxx Frome Xxxxxxx LLP, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of each Closing Date, signed by the of its Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To their knowledge after reasonable investigation, the representations representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions to closing set forth in this Agreement have been fulfilled;
iii. The Company has not sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make .
(f) No event has occurred at the statements therein, in light of the circumstances under which they were made, not misleading; and Company since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectOffering.
(pg) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderOffering.
(qh) You The Common Stock shall then be listed and trading on Nasdaq and, prior to their issuance, Nasdaq shall have received lock-up letters, substantially in approved the form set forth in Exhibit A hereto, from each listing of the executive officers and directors Shares, subject only to official notice of the Company set forth in Schedule IV heretoissuance.
(ri) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Offering by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst been furnished to the Dealer-Manager (i) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxx Xxxxxx Xxxxxxx & Young Hampton LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing, and (ii) the signed opinion (addressed to the Dealer-Manager) of Xxxxxx, LLP, intellectual property counsel for the Company, dated the date hereof and as of such Closing, each of (i) and (ii) in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the certificate of the type ordinarily included Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates approved the shares of officers Common Stock issuable upon conversion of the Company) as to the accuracy Rights Shares and exercise of the representations and warranties Rights Warrants for listing, subject only to official notice of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (ContraVir Pharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, the Units, the Rights Shares (including, for the avoidance of doubt, any Preliminary ProspectusPre-Funded Warrants and the shares of Common Stock underlying such Pre-Funded Warrants), the Pricing Disclosure PackageRights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Bxxxxxx Xxxxx LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of ______, intellectual property counsel for the Company, dated the date hereof and information in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of EKS&H, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) of its principal executive officer and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied its principal financial officer stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and Prospectus and up to or the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectProspectus.
(ph) The Company shall have furnished to you the Dealer-Manager and its counsel such further additional documents, certificates and documents evidence as you the Dealer-Manager or its counsel may have reasonably requested.
(i) The Company and its Subsidiaries shall reasonably request not have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the Rights Offering.
(including certificates j) The MKT shall have approved the Rights Shares for listing, subject only to official notice of officers issuance, provided that the Pre-Funded Warrants and the Rights Warrants will not be listed for trading on the MKT.
(k) Each of the Company) as ’s officers, directors, and stockholders beneficially owning more than 5% of the Common Stock shall have entered into a lock-up agreement in a form acceptable to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderDealer-Manager.
(ql) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificatesor by telephone and confirmed in writing.
(m) No order suspending the sale of the Rights Warrants in any jurisdiction designated by the Dealer Manager pursuant to Section 9(p) hereof shall have been issued on either on the Closing Date, letters and documents, as you no proceedings for that purpose shall reasonably requesthave been instituted or shall be contemplated.
Appears in 1 contract
Samples: Dealer Manager Agreement (Xtant Medical Holdings, Inc.)
Conditions of Dealer-Manager’s Obligations. Your obligations to act and to continue to act (as provided herein the case may be) as Dealer Manager shall be subject at all times on and prior to the Closing Date to the accuracy accuracy, in all material respects, of the representations and warranties of the Company hereincontained herein as of the Commencement Date and as of the Closing Date as if made on and as of such date, to the accuracy accuracy, in all material respects, of statements of the statements of Company's officers of the Company made pursuant to the provisions hereof, to the performance by the Company Company, in all material respects, of its obligations covenants and agreements hereunder and to the following additional conditions:
(a) The Company shall deliver or cause to be delivered to the Dealer Managers by no later than the Commencement Date, the Prospectus and any other Transaction Document requested by the Dealer Managers, in form and substance reasonably acceptable to the Dealer Managers;
(b) The Registration Statement shall have become effective not later the Commencement Date, the Prospectus shall have been filed with the SEC in a timely fashion in accordance with Section 4(a) hereof and a form of the Prospectus containing information relating to the Exchange Offer and Consent Solicitation and the method of distribution and similar matters shall have been filed with the SEC pursuant to Rule 424(b) within the applicable time period, if required; and, at or prior to the Commencement Date and the Closing Date, no stop order refusing suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose therefor shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counselSEC.
(bc) After execution and delivery There shall not have been any injunction or other order of this Agreement and any court or governmental regulatory authority against the Company or against you relating to your acting in your capacity as Dealer Managers with respect to the Transactions or in any other capacity in respect of the Transactions.
(d) The proceedings taken at or prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, Transactions shall be in form and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner substance reasonably satisfactory to you and your counsel, and such counsel shall have been furnished with all such papers documents, certificates and information opinions as they may reasonably have requested request in order to enable them to pass upon evidence the matters referred to accuracy and completeness in this Section.
(d) You shall have received all material respects of any of the opinion representations or warranties of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed performance in all material respects of any covenants of the Company theretofore to yoube performed, substantially in or the form compliance with any of Exhibit B-1 hereto.the conditions herein contained
(e) You shall have received On the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Commencement Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respectsTransaction Documents, as if made on they may then be amended and as of the Closing Date or such other date as of which any representation speakssupplemented, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did shall not and does not include contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(pi) The Company On the Commencement Date, you shall have furnished to you such further certificates and documents received, dated as you shall reasonably request (including certificates of officers of the Commencement Date, the opinion of Ledgewood Law Firm, P.C., counsel for the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in of Exhibit A heretohereto in form and substance reasonably satisfactory to you and (ii) on the Closing Date, from each you shall have received, dated as of the executive officers Closing Date, the opinion of Ledgewood Law Firm, P.C., counsel for the Company, substantially in the form of Exhibit B hereto in form and directors substance reasonably satisfactory to you.
(g) On the Closing Date, the Dealer Managers shall have received a certificate of the Chairman or the President of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect and of the chief financial or chief accounting officer of the Company, dated as of the Closing Date, to the fairness effect that (i) there has been no Material Adverse Change, (ii) the representations and reasonableness warranties herein are true and correct in all material respects with the same force and effect as though expressly made at and as of the terms and arrangements in connection with Closing Date, after giving effect to the offering consummation of the New Notes. All such opinions, certificates, letters Transactions and documents will (iii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be in compliance with performed or satisfied at or prior to the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestClosing Date.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager (i) a signed opinion and negative assurance letter (addressed to the Dealer-Manager) of Dxxxxx & Wxxxxxx LLP, counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Manager) of Life Science Law PC, counsel for the Company, and (iii) the signed opinion (addressed to the Dealer-Manager) of Pxxxxxxxxx PC, intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Maxim.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of the Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Txxxxx, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand each Subsidiary and board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have received lock-up approved the listing of the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Sintx Technologies, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or material limitation is necessary to make the statements therein not misleading and that has not been corrected or disclosed in trading instituted by one or more amendments to the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange Registration Statement or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesProspectus.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageUnits, the Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At On the time closing of the execution of this AgreementUnits pursuant to the Subscription Rights, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion and negative assurance letter (addressed to the Dealer-Manager) of Mxxxxx, Xxxxx & Young Bxxxxxx LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information counsel for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of such date and in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of each Closing Date, signed by the of its Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To their knowledge after reasonable investigation, the representations representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions to closing set forth in this Agreement have been fulfilled;
iii. The Company has not sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make .
(f) No event has occurred at the statements therein, in light of the circumstances under which they were made, not misleading; and Company since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectOffering.
(pg) The Company Neither FINRA nor Nasdaq shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderOffering.
(qh) You The Common Stock shall then be listed and trading on Nasdaq and, prior to their issuance, Nasdaq shall have received lock-up letters, substantially in approved the form set forth in Exhibit A hereto, from each listing of the executive officers and directors Shares, subject only to official notice of the Company set forth in Schedule IV heretoissuance.
(ri) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Offering by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusOffering Securities, the Pricing Disclosure Package, Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and upon such Closing, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of The Xxxx Xxx Firm, a letter PLLC, counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information upon such Closing, there shall have been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, intellectual property counsel for the Company, dated the date hereof and in form and substance satisfactory to counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and upon such Closing, the Company shall have furnished to the Dealer-Manager a letter of GBH, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer and Chief its Principal Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NYSE American shall have furnished approved the Rights Shares and Underlying Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such cancellation shall be without liability of the Dealer-Manager to the Company. Notice of such cancellation shall be given to the Company in writing, or by telephone and confirmed in writing.
(k) The Company will furnish you with shall have furnished to the Dealer-Manager and its counsel such number of conformed copies of such opinions, certificates, letters and additional documents, certificates and evidence as you shall the Dealer-Manager or its counsel may have reasonably requestrequested.
Appears in 1 contract
Samples: Dealer Manager Agreement (Actinium Pharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your obligations as ------------------------------------------ provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Incorporated Document or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the reasonable judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Marketthe Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Marketthe Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Xxxxx, Xxxxxxx & Riendel Xxxxxxxxx, LLP, outside counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda intellectual property counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (je) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) Delaware upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kf) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(lg) At the time of the execution of this Agreement, you shall have received from Ernst & Young KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 20022001 and 2002 and the three months ended March 31, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(mh) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lg) above.
(ni) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lg) and (mh) above.
(oj) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, and the Incorporated Documents contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a material adverse effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pk) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(ql) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(rm) You shall have received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At Concurrently with the time of the execution of this AgreementClosing, you there shall have received from Ernst & Young been furnished to the Dealer-Manager (i) the signed opinion (addressed to the Dealer-Manager) of Pxxxxxx Coie LLP, a letter counsel for the Company, dated as of such dateClosing, and (ii) the signed opinion (addressed to the Dealer-Manager) of Oblon, McClelland, Mxxxx and Neustadt, LLP, intellectual property counsel for the Company, dated as of such Closing, each of (i) and (ii) in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the certificate of the type ordinarily included in accountants’ “comfort letters” to underwriters Company’s Chief Financial Officer with respect to certain regulatory matters dated the financial statements date hereof and certain financial information as of such Closing, and in form and substance satisfactory to counsel for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You Concurrently with the execution of this Agreement and at Closing, the Company shall have received by or on furnished to the effective Dealer-Manager a customary comfort letter of M&K, addressed to the Dealer-Manager and dated the date of the Registration Statement, on the Expiration Date hereof and by the Applicable Time, a bring-down comfort letter, dated as of such Closing in form and content satisfactory to the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) aboveDealer-Manager.
(ng) You The Company shall have received by or on furnished to the Closing DateDealer-Manager a certificate, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this AgreementClosing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required any development reasonably likely to be included therein by result in a prospective Material Adverse Change; and
(iv) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall not have furnished to you such further certificates and documents as you shall reasonably request (including certificates sustained since the date of officers this Agreement any Material Adverse Change, the effect of which is, in the judgment of the Company) Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qi) You The Common Stock shall then be listed and trading on NASDAQ and the Company shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each notified NASDAQ of the executive officers and directors listing of the Company set forth in Schedule IV heretoRights Shares and the shares issuable upon exercise of the Rights Warrants.
(rj) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementXxxxx & Xxxxxx L.L.P., which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Dealer-Manager, to the effect of the opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company NasdaqCM shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(a) a. The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After b. The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager , is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c. All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d. Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager a signed opinion and negative assurance letter (addressed to the Dealer-Manager ) of Maslon LLP, counsel for the Company, dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Oak Ridge.
e. [Reserved.]
f. Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Wipfli, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g. The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of an executive officer of the Company stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(p) h. The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i. Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(q) You j. The Common Stock shall then be listed and trading on NYSE American and NYSE American shall have received lock-up approved the listing of the Right Shares and the shares Common Stock issuable upon exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k. All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificatesor by telephone and confirmed in writing.
l. That the Company has retained a Subscription Agent for the Rights Offering reasonably acceptable to the Dealer-Manager, letters and documents, as you shall reasonably requestto perform services in connection with the Rights Offering that are customary for such agents.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Libertas Law Group, a letter Inc., counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements and information counsel for the Dealer-Manager, to the effect of the type ordinarily included opinions set forth on Exhibit A hereto.
(e) Concurrently with the execution of this Agreement, the Company shall have furnished to the Dealer-Manager a letter of Mxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof, of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company NasdaqCM shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Chanticleer Holdings, Inc.)
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Incorporated Document or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the reasonable judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Plus Cash Notes or to enforce contracts for the exchange and/or sale of the New Plus Cash Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Marketthe Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Marketthe Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Plus Cash Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Xxxxx, Xxxxxxx & Riendel Xxxxxxxxx, LLP, outside counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda intellectual property counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (je) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) Delaware upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kf) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(lg) At the time of the execution of this Agreement, you shall have received from Ernst & Young KPMG LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 20022001 and 2002 and the six months ended June 30, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(mh) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lg) above.
(ni) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young KPMG LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lg) and (mh) above.
(oj) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, and the Incorporated Documents contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a material adverse effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pk) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(ql) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(rm) You shall have received on the Closing Date, all fees payable to you in cash pursuant to Section 6 hereof.
(n) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Plus Cash Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the Dealer-Managers’ reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageUnits, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young been furnished to the Dealer-Managers the signed opinion (addressed to the Dealer-Managers) of Gxxxxxxxx Txxxxxx, LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Managers.
(e) Concurrently with the execution of this Agreement and information at Closing, the Company shall have furnished to the Dealer-Managers a letter of Citrin Cxxxxxxxx, addressed to the Dealer-Managers and dated the date hereof and as of the type ordinarily included date of Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Managers.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Managers a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) the representations The representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(g) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company Nasdaq shall have furnished approved the Units, Rights Shares and Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinissuance and, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness Units, confirmation that a sufficient number of Units have been acquired to cause a sufficient number of Units to be issued to the terms and arrangements in connection with number of holders necessary to meet the offering listing standards of the New Notes. Nasdaq.
(i) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies the Dealer-Managers to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company, and shall not have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusCharter Amendment, the Pricing Disclosure PackageRights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxxx Procter LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information counsel for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Dateand in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, signed the Company shall have furnished to the Dealer-Manager a letter of RBSL, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof, of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. The Charter Amendment shall have become effective in accordance with its terms under the representations laws of the State of Utah;
ii. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects, as if made on and as of ;
iii. Subsequent to the Closing Date or such other date respective dates as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of information is given in the Registration Statement and the Prospectus, there has not been issued and no proceedings for that purpose any Material Adverse Change or any development involving a prospective Material Adverse Change; and
iv. They have been instituted or are pending or threatened under the Securities Act;
(iii) when carefully examined the Registration Statement became effective and at the Applicable TimeProspectus and, and at all times subsequent thereto up to the date of such certificate, in their opinion (A) the Registration Statement, as of the Pricing Disclosure Package, the ProspectusEffective Date, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and Prospectus the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretodate thereof, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date or the date of the Prospectus, and as applicable, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus.
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company Bulletin Board shall have furnished to you such further certificates approved the Rights, the Rights Shares and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Warrants for quotation.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestcounsel for the Dealer-Manager.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued andand no proceedings for either purpose shall have been initiated or, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Incorporated Document or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, businessfinancial or otherwise, prospectsor in the earnings, property, operations business affairs or results of operations business prospects of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Plus Cash Notes or to enforce contracts for the exchange and/or sale of the New NotesShares, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Marketthe Nasdaq, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Marketthe Nasdaq, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Plus Cash Notes issuable in accordance with the Exchange Offer, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel Xxxxx Xxxxxxx Xxxxxxx Israels LLP, outside counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda intellectual property counsel for the Company, dated the Closing Date Date, addressed to you, substantially to the effect set forth in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (je) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) Delaware upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer ManagerManagers, and to your counsel.
(kf) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP LLP, in form and substance satisfactory to you, with respect to the sufficiency of all such corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably requestrequire, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(lg) At the time of the execution of this Agreement, you shall have received from Ernst & Young UHY LLP, a letter dated as such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the first quarter of fiscal year 2005.
(h) At the time of the execution of this Agreement, you shall have received from KPMG LLP, a letter dated such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus2004.
(mi) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young UHY LLP addressed to you which shall reaffirm the statements made in the letter referenced in (lg) above.
(nj) You shall have received by or on effective date of the Registration Statement, a bring-down comfort letter, dated as of the effective date as the case may be, from KPMG LLP addressed to you which shall reaffirm the statements made in the letter referenced in (h) above.
(k) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young UHY LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (lg) and (mi) above.
(ol) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, Statement and the Prospectus, and any amendments or supplements thereto, and the Incorporated Documents contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do does not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the condition (financial conditionor otherwise), businessearnings, prospectsoperations, property, operations business or results of operations business prospects of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectEffect or a material adverse effect on the ability of the Company to perform its obligations under the Exchange Offer or consummate the Exchange Offer.
(pm) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(qn) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV A hereto.
(ro) The NASD You shall have confirmed that it has not raised any objection with respect received on the Closing Date, all fees payable to the fairness and reasonableness of the terms and arrangements you in connection with the offering of the New Notescash pursuant to Section 6 hereof. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At On the time of the execution of this AgreementClosing Date, you there shall have received from Ernst & Young been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxx Xxxxxxx, LLP, a letter counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements and information counsel for the Dealer-Manager, to the effect of the type ordinarily included opinions set forth on Exhibit A hereto.
(e) The Company shall have furnished to the Dealer-Manager a letter of each of the Auditors, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mf) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Manager a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Companycertificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects;
ii. The conditions set forth in this Agreement have been fulfilled;
iii. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and
v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company NasdaqCM shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (RMG Networks Holding Corp)
Conditions of Dealer-Manager’s Obligations. Your The obligations of the Dealer-Manager hereunder are subject to the accuracy, as provided herein shall be subject of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company and shall not have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusCharter Amendment, the Pricing Disclosure PackageRights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst & Young been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of DLA Piper LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information counsel for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Dateand in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement, signed by the Company shall have furnished to the Dealer-Manager a “comfort letter” of BKD, LLP, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) containing customary provisions for transactions of this type.
(f) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof, of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) i. The Charter Amendment shall have become effective in accordance with its terms under the representations laws of the State of Delaware;
ii. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects, as if made on and as of ;
iii. Subsequent to the Closing Date or such other date respective dates as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of information is given in the Registration Statement and the Prospectus, there has not been issued and no proceedings for that purpose any Material Adverse Change or any development involving a prospective Material Adverse Change; and
iv. They have been instituted or are pending or threatened under the Securities Act;
(iii) when carefully examined the Registration Statement became effective and at the Applicable TimeProspectus and, and at all times subsequent thereto up to the date of such certificate, in their opinion (A) the Registration Statement, as of the Pricing Disclosure PackageEffective Date, and the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretodate thereof, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date or the date of the Prospectus, and as applicable, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus.
(g) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company hereinAll opinions, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably requestcounsel for the Dealer-Manager.
Appears in 1 contract
Samples: Dealer Manager Agreement (Mercantile Bancorp, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on during the Rights Offering and prior to the Closing Date to the accuracy any Standby Placement Period, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Offering Statement shall have become qualified and the Offering Circular shall have been timely filed prior with the Commission in accordance with the Securities Act; (ii) all post-qualification amendments to the Commencement Date and Offering Statement shall have become qualified; (iii) no stop order refusing suspending the effectiveness thereof qualification of the Offering Statement or any amendment or supplement thereto shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Offering Statement or the Prospectus, or other Exchange Offer Materials Offering Circular or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Offering Statement or the Offering Circular or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension in the opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or material limitation is necessary to make the statements therein not misleading and that has not been corrected or disclosed in trading instituted by one or more amendments to the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange Offering Statement or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesOffering Circular.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the ProspectusPIK Shares, other Exchange Offer Materials or otherwisethe Offering Statement and the Offering Circular, and all other legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementXxxxxxxxxx Hyatt Xxxxxx Xxxxxxx, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of LLP, counsel for the Company, dated as of the Closing DateDate and in form and substance satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a letter of BDO USA, signed by LLP, addressed to the Chief Executive Officer Dealer-Manager and Chief Financial Officer dated as of the Company, certifying that, and you shall be satisfied that:
effective date of this Agreement: (i) confirming that it is the representations and warranties independent registered public accountant of the Company within the meaning of the Securities Act and is in this Agreement are true compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and correct in all material respectsapplicable rules of the Commission, as if made on and (ii) providing negative assurances, as of the Closing Date or such other date as of which any representation speaksthe letter, as that the case may beinterim financial statements included in the Offering Statement for the three and six months ended March 31, 2019 and June 30, 2019, respectively, are in conformity with United States’ generally accepted accounting principles (GAAP) and the Company has complied with all applicable accounting requirements of the agreements Securities Act and satisfied all the conditions Exchange Act and the related rules and regulations adopted by the SEC.
(f) On the date of this Agreement and on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;, the Company shall have furnished to the Dealer-Manager certificates of the Company’s Chief Financial Officer, dated the respective dates of their delivery and addressed to the Dealer-Manager, with respect to certain financial data contained in each of the Offering Statement and the Offering Circular, providing “management comfort” with respect to such information, in form and substance satisfactory to counsel for the Dealer-Manager.
(iig) no stop order refusing or suspending The Company shall have furnished to the effectiveness Dealer-Manager a certificate, dated as of the Registration Statement has been issued Closing Date, of its Chief Executive Officer and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;its Chief Financial Officer stating that:
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificatei. To their knowledge after reasonable investigation, the Registration Statementrepresentations, the Pricing Disclosure Packagewarranties, the Prospectus, covenants and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations agreements of the Commission thereunder, as the case may be, Company hereof are true and correct in all material respects conformed respects;
ii. The conditions to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be Closing set forth in an amended or supplemented Prospectus which has not this Agreement have been so set forth; andfulfilled;
(iv) subsequent iii. Subsequent to the respective dates as of which information is given in the Registration Offering Statement and Prospectus and up the Offering Circular, neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding; and
iv. Subsequent to the date respective dates as of such certificate, which information is given in the Offering Statement and except as disclosed thereinthe Offering Circular, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change.
(ah) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of Neither the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or nor any of its subsidiaries which has been Subsidiaries shall have sustained or will have been sustained and which has a since the date of the latest audited financial statements included in the Offering Circular any Material Adverse EffectChange, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the Rights Offering.
(pi) The Company FINRA shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(q) You shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. Dealer-Manager’s engagement hereunder.
(j) All such opinions, certificatesletters, letters evidence and documents will certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering or Standby Placement Period, as applicable, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Manager shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material, or omits to state a fact which, in the Dealer-Manager’s reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Manager, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Manager, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager (i) a signed opinion and negative assurance letter (addressed to the Dealer-Manager) of Cozen X’Xxxxxx P.C., counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Manager) of Xxxxxx Xxxxxxxxx LLP, intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance reasonably satisfactory to counsel for Maxim.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Manager the certificate of the Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a customary comfort letter of Xxxxxx, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Manager a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Effective Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoClosing, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Manager a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand each Subsidiary and board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by Rights Offering.
j) The Common Stock shall then be quoted and trading on OTC Pink and the Company has filed all notifications of its obligations hereunder the issuance of the Common Stock as required by FINRA and as to the other conditions concurrent and precedent to your obligations hereunderOTC Pink.
(qk) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Healthier Choices Management Corp.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer- Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer- Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the each Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Managers the signed opinion, including, without limitation, a negative assurance letter, addressed to the Dealer-Managers in the form and substance satisfactory to the Dealer-Managers of Libertas Law Group, Inc., counsel for the Company, dated the date hereof and as of such Closing.
(e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Managers a cold comfort letter, addressed to the Dealer-Managers and in form and substance satisfactory in all respects to the Dealer-Managers from Cherry Bekaert dated the date hereof, and a bring-down letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusClosing.
(mf) You Concurrently with the execution of this Agreement and at Closing, the Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Managers a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) hereof and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Datesuch Closing, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(g) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(ph) The Company Nasdaq shall have furnished approved the Rights Shares for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qi) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at any time during the Rights Offering by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Chanticleer Holdings, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the each Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After The Dealer-Managers shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer-Managers, is material, or omits to state a fact which, in the Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer-Managers, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Managers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Managers (i) the signed opinion (addressed to the Dealer-Managers) of Sxxxxxxxx Xxxx & Bxxxx PLLC, counsel for the Company, and (ii) the signed opinion (addressed to the Dealer-Managers) of [ ], intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for the Dealer-Managers.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Managers the certificate of the Company’s [Chief Executive Officer] with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for the Dealer-Managers.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers customary comfort letters of RSM and MBAF, each addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are or were independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Managers.
g) The Company shall have furnished to the Dealer-Managers a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Managers a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand each Subsidiary and board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NYSE and NYSE shall have received lock-up approved the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies any Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Samples: Dealer Manager Agreement (Hemispherx Biopharma Inc)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to each Dealer-Manager’s reasonable satisfaction.
b) The Dealer-Managers shall not have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Dealer-Managers’ reasonable opinion, or in the reasonable satisfaction opinion of your counselcounsel to the Dealer-Managers, is material, or omits to state a fact which, in the Dealer-Managers’ reasonable opinion, or in the reasonable opinion of counsel to the Dealer-Managers, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(bc) After All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Rights, the Rights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Dealer-Managers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d) Concurrently with the execution and delivery of this Agreement and at Closing, there shall have been furnished to the Dealer-Managers (i) a signed opinion and negative assurance letter (addressed to the Dealer-Managers) of Loeb & Loeb LLP, counsel for the Company, (ii) a signed opinion and the negative assurance letter (addressed to the Dealer-Managers) of Xxxxxxxxx Xxxxxxx, LLP, intellectual property counsel for the Company, each dated the date hereof and as of such Closing, in form and substance satisfactory to counsel for Maxim.
e) Concurrently with the execution of this Agreement and at Closing, there shall have been furnished to the Dealer-Managers the certificate of the Company’s Chief Executive Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in form and substance satisfactory to counsel for Maxim.
f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers a customary comfort letter of BDO, addressed to the Dealer-Managers and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two days prior to the Closing Date there date of the letter), the conclusions and findings of such firm with respect to the financial information and other matters specified by the Dealer-Manager.
g) The Company shall have furnished to the Dealer-Managers a certificate, dated the date hereof and of such Closing, of its Chief Executive Officer or President and its Chief Financial Officer stating that:
i. To the best of their knowledge after reasonable investigation, the representations, warranties, covenants and agreements of the Company in Section 5 hereof are true and correct in all material respects;
ii. The conditions set forth in this Section 10 have been fulfilled;
iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not have occurred covered by insurance, or from any labor dispute or any legal or governmental proceeding;
iv. Subsequent to the respective dates as of which information is given in the Prospectus (exclusive of Registration Statement and the Prospectus, there has not been any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis Material Adverse Change or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.Material Adverse Change; and
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, shall v. They have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of carefully examined the Registration Statement and the Prospectus and, in their opinion (or one business day prior thereto)A) the Registration Statement and the Prospectus, as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Effective Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective date of the Registration Statement, there Effective Date no event has occurred no event required to be which should have been set forth in an amended a supplement or supplemented Prospectus which has not been so set forth; and
(iv) subsequent amendment to the respective dates as of which information is given in the Registration Statement and or the Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effectbeen.
(ph) The Company shall have furnished to you the Dealer-Managers a certificate, dated the date hereof and of such further certificates and documents as you shall reasonably request (including certificates Closing, of officers of the Company) as its Secretary certifying to the accuracy organizational documents, good standing in the state of the representations and warranties incorporation of the Company hereinand board resolutions relating to the Rights Offering and the issuance of the Securities from the Company.
i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any Material Adverse Change, the effect of which is, in the judgment of the Dealer-Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qj) You The Common Stock shall then be listed and trading on NASDAQ and NASDAQ shall have received lock-up approved the listing of the shares of Common Stock issuable upon conversion of the Rights Shares and exercise of the Rights Warrants for listing, subject only to official notice of issuance.
k) All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such number cancellation shall be without liability of conformed copies any Dealer-Managers to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) (i) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued and timely filed with the Commission in accordance with the Securities Act; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date and effective; (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and (iv) any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration StatementRights, any Preliminary ProspectusUnits, Rights Shares, Warrants, Common Stock underlying the Warrants, the Pricing Disclosure Package, Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on On the Closing Date, a letter dated as of there shall have been furnished to the Closing Date Dealer-Manager the signed opinion (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form Dealer-Manager) of the bring-down comfort letter dated the date of this AgreementCozen X’Xxxxxx P.C., which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of counsel for the Company, dated as of the Closing Date and in form and substance reasonably satisfactory to counsel for the Dealer-Manager.
(e) The Company shall have furnished to the Dealer-Manager a certificate, dated as of the Closing Date, signed by the of its Chief Executive Officer or President and its Chief Financial Officer stating that: i. To the best of their knowledge after reasonable investigation, the Companyrepresentations, certifying thatwarranties, covenants and you shall be satisfied that:
(i) the representations and warranties agreements of the Company in this Agreement hereof are true and correct in all material respects; ii. The conditions set forth in this Agreement have been fulfilled; iii. Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding; iv. Subsequent to the respective dates as if made on of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change; and v. They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement and the Prospectus, as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Effective Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and (B) since the Pricing Disclosure Package and Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus, and .
(f) Neither the Company nor any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and its Subsidiaries shall have sustained since the effective date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pg) The Company Neither FINRA nor the NYSE shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as objected to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderRights Offering.
(qh) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given the Company in writing, certificates, letters or by telegraph or telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your obligations as provided herein shall be subject at all times on and prior to the Closing Date to the accuracy of the representations and warranties of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to the Expiration Date and no stop order suspending the effectiveness thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for either purpose shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make it, in the judgment of the Dealer ManagersManager, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The the Nasdaq National Global Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The the Nasdaq National Global Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. NASD or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange OfferOffers, shall have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx Ropes & Riendel Xxxx LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Ropes & Xxxx & XxxxxxxLLP, special Bermuda counsel for to the CompanyCompany with respect to patent and proprietary rights relating to Antara, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice PresidentXxxxx, General Counsel Xxxxx & Xxxxxxxx, P.C., special counsel to the Company with respect to patent and Secretary of the Companyproprietary rights relating to Factive, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held Xxxxxxxxx & Xxxxxx Ltd.Xxxxxxx LLP, special counsel to the Company with respect to patent matters regarding laws and proprietary rightsregulations of the U.S. Food and Drug Administration, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (jg) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(kh) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(li) At On the time effective date of the execution of this AgreementRegistration Statement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 302003, 2004, 2005 and 2006 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(nj) You shall have received by or on the Closing Date, a bring-down comfort letter dated as of the Closing Date (or one business day prior thereto) as the case may be), from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreementyou, which shall reaffirm the statements made in the letters letter referenced in (l) and (mi) above.
(ok) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you shall be satisfied that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and any amendments or supplements thereto, contained all material information required to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(pl) The Company shall have furnished to you such further certificates and documents as you shall reasonably request (including certificates of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunder.
(qm) You Prior to the execution of this Agreement, you shall have received lock-up letters, substantially in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(rn) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.
Appears in 1 contract
Samples: Dealer Manager Agreement (Oscient Pharmaceuticals Corp)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young LLPbeen furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Libertas Law Group, a letter Inc., counsel for the Company, dated as of such date, the date hereof and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) [Reserved.]
(f) Concurrently with the execution of this Agreement and information at Closing, the Company shall have furnished to the Dealer-Manager a letter of Wxxxxxxx, addressed to the Dealer-Manager and dated the date hereof: (i) confirming that they are independent registered public accountants of the type ordinarily included Company within the meaning of the Securities Act and are in accountants’ “comfort letters” compliance with the applicable requirements relating to underwriters the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date hereof and of this Agreementsuch Closing, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) the representations The representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NYSE American shall have furnished approved the Rights Shares and shares of Common Stock underlying the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein shall be of the Dealer Manager under this Agreement are subject at all times on and prior to the Closing Date to satisfaction of each of the accuracy following conditions:
(a) All of the representations and warranties of the Company hereincontained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by them at or prior to the accuracy of the statements of officers of Closing Date.
(b) If the Company made pursuant is required to file a Rule 462(b) Registration Statement after the provisions hereofeffectiveness of this Agreement, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(asuch Rule 462(b) The Registration Statement shall have been filed prior to the Commencement Date and no stop order refusing the effectiveness thereof shall have been issued and the Registration Statement shall become effective prior to by 10:00 P.M., New York City time, on the Expiration Date date of this Agreement; and no stop order suspending the effectiveness thereof of the Registration Statement shall have been issued andand no proceedings for that purpose shall have been commenced or shall be pending before or contemplated by the Commission.
(c) The Prospectus shall have been printed and copies distributed to the Dealer Manager on the date of this Agreement or at such later date and time as to which you may agree, and no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(d) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance or sale of any of the Securities; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company and its subsidiaries, threatened against, the Company or youany of its subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would have a Material Adverse Effect; and no proceedings for either purpose stop order preventing the use of the Registration Statement or Prospectus, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been initiated or threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, the Prospectus, or other Exchange Offer Materials or otherwise) shall have been complied with to the reasonable satisfaction of your counselissued.
(be) After execution and delivery of this Agreement and prior to Since the Closing Date there shall not have occurred from the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) Prospectus, (i) there shall not have been any material adverse change change, or any development that is reasonably likely to result in a material change, in the financial conditioncapital stock or the long-term debt, businessor material increase in the short-term debt, prospects, property, operations or results of operations of the Company whether or not arising any of its subsidiaries from that set forth in the ordinary course of businessProspectus, or (ii) no dividend or distribution of any material adverse change in kind shall have been declared, paid or made by the financial markets in Company on any class of its capital stock, and (iii) neither the United States Company nor any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, that are material, individually or in the international financial marketsaggregate, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving to the Company and its subsidiaries, taken as a prospective change whole, and that are required to be disclosed on a balance sheet in national or international political, financial or economic conditions, which accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet included in each case the effect Prospectus. Since the date hereof and since the dates as of which information is such as to make it, given in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authorities.
(c) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, other Exchange Offer Materials or otherwise, and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, there shall not have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 heretoany Material Adverse Change.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company(i) a certificate, dated the Closing Date addressed to youDate, substantially in signed by (x) the form President and Chief Executive Officer and (y) the principal financial officer of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rightsconfirming, dated as of the Closing Date addressed to youDate, substantially the matters set forth in the form of Exhibit B-4 hereto.
paragraphs (h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (da), (eb), (fc), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State e) of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counselthis Section 7.
(kg) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters.
(l) At the time of the execution of this Agreement, you shall have received from Ernst & Young LLP, a letter dated as of such date, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the Prospectus.
(m) You shall have received by or on the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, a bring-down comfort letteryour counsel), dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may beRiorxxx & XcKixxxx, from Ernst & Young LLP addressed xxunsel to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated to the effect that and based upon certain assumptions and representations as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of to factual matters from various persons affiliated with the Company, certifying thatunder the federal laws of the United States, the States of Delaware and you shall be satisfied thatNew York (assuming the law is the same as that of California and without giving effect to conflicts of laws principles) and, where indicated, the State of California:
(i) The Company has been duly incorporated and is validly existing as a corporation under the representations and warranties laws of the Company in this Agreement are true State of Delaware, with all requisite corporate power and correct in all material respectsauthority to own, lease and operate its properties and to conduct its business as if made on it is currently being conducted and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, described in the Prospectus, and any amendments or supplements theretois duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ownership, contained all material information required leasing and operating of its property and the conduct of its business requires such qualification, except where the failure to be included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in all material respects conformed so qualified would not be reasonably expected to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement thereto, did not and does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations of the Company and its subsidiaries considered as one enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse Effect.
(pii) The authorized, issued and outstanding capital stock of the Company has been duly and validly authorized and issued and is fully paid and nonassessable.
(iii) The Company shall has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture and the other documents prepared and delivered in connection herewith to which it is a party and to consummate the transactions contemplated hereby or thereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Securities.
(iv) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(v) The Rights have furnished been duly authorized and validly issued and are fully paid and non-assessable and not subject to you such further certificates and documents as you shall reasonably request any preemptive or similar rights.
(including certificates of officers vi) The Common Stock issuable upon exercise of the CompanyRights has been duly authorized and, when issued and delivered in accordance with the terms of the Prospectus, will be validly issued, fully paid and non-assessable, and the issuance of such Common Stock will not be subject to any preemptive or similar rights.
(vii) The Securities conform as to legal matters to the accuracy of descriptions thereof in the representations and warranties of Prospectus.
(viii) Neither the Company hereinnor any of its United States subsidiaries (A) is in violation of its respective charter or, as to the knowledge of such counsel, its by-laws or other organizational documents, (B) to the knowledge of such counsel, is in default in the performance of any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties is subject or (C) is in violation of any United States federal or State of California or Delaware law, statute, rule, regulation, or, to the knowledge of such counsel, any judgment or court decree applicable to the Company, any of its subsidiaries or their assets or properties that in the case of clauses (A), (B) and (C) above, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(ix) The execution, delivery and performance by the Company of its obligations hereunder this Agreement and as to the other conditions concurrent documents prepared and precedent delivered in connection herewith to your obligations hereunder.
(q) You shall have received lock-up letterswhich it is a party, substantially in the form set forth in Exhibit A hereto, from each issuance and sale of the executive officers Securities, and directors the consummation of the Company set forth in Schedule IV hereto.
(r) The NASD shall have confirmed that it has transactions contemplated hereby and thereby, will not raised any objection with respect to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinionsviolate, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with such number of conformed copies of such opinions, certificates, letters and documents, as you shall reasonably request.conflict with
Appears in 1 contract
Samples: Dealer Manager Agreement (Superior National Insurance Group Inc)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Managers hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Managers) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Managers and complied with to the each Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Managers shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Managers’ opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Managers, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment Dealer-Managers’ opinion, or in the opinion of counsel to the Dealer Dealer-Managers, impracticable is material and is required to be stated therein or inadvisable is necessary to market make the New Notes or to enforce contracts for the exchange and/or sale of the New Notes, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United States, or (iv) the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably requestDealer-Managers, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this AgreementAgreement and at Closing, you there shall have received from Ernst & Young been furnished to the Dealer-Managers (i) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxxx Xxxxxxx LLP, a letter counsel for the Company, dated the date hereof and as of such dateClosing, (ii) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxx Xxxxx, P.C., Nevada counsel for the Company, dated the date hereof and as of such Closing, (iii) the signed opinion (addressed to the Dealer-Manager) of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Company, dated the date hereof and as of such Closing, and (iv) the signed opinion (addressed to the Dealer-Manager) of Xxxxxxxxxxx X’Xxxxxx, intellectual property counsel for the Company, dated the date hereof and as of such Closing, each of (i) through (iv) in form and substance satisfactory to you containing statements counsel for Maxim.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Managers the certificate of the type ordinarily included Company’s Chief Executive Officer and Chief Scientific Officer with respect to certain regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for Maxim.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Managers a letter of Ernst & Young LLP, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than two business days prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Managers.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration Statement, on the Expiration Date and by the Applicable Time, Dealer-Managers a bring-down comfort lettercertificate, dated as of the effective date such Closing, of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Date, signed by the its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Managers, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The That the Company remains listed on NASDAQ and that NASDAQ shall have furnished approved the Rights Shares and the shares of Common Stock underlying the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Managers. The If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Managers hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Managers. Any such cancellation shall be without liability of any Dealer-Manager to the Company. Notice of such cancellation shall be given to the Company will furnish you in writing, or by telephone and confirmed in writing.
(k) That the Company has retained a Subscription Agent for the Rights Offering reasonably acceptable to the Dealer-Managers, to perform services in connection with the Rights Offering that are customary for such agents.
(l) From the date hereof until ninety (90) days after the Closing, the Company (along with any Subsidiaries that the Company may have following the date hereof) shall not enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents other than (i) the issuance of securities in the Rights Offering, (ii) an Exempt Issuance or (iii) as approved in advance in writing by Maxim. For purposes of this Section 9(l), “Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and “Exempt Issuance” means the issuance of (a) shares of Common Stock, restricted stock, restricted stock units or Common Stock Equivalents to employees, officers, directors or consultants of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the conversion of the Rights Shares and/or exercise of the Rights Warrants issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of conformed copies such securities or to decrease the exercise price, exchange price or conversion price of such opinionssecurities (other than in connection with automatic price resets, certificatesstock splits, letters adjustments or combinations as set forth in such securities) or to extend the term of such securities and documents(c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as you “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the 90-day lock-up period set forth herein, and provided that any such issuance shall reasonably requestonly be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
Appears in 1 contract
Samples: Dealer Manager Agreement (DelMar Pharmaceuticals, Inc.)
Conditions of Dealer-Manager’s Obligations. Your The obligations as provided herein of the Dealer-Manager hereunder are subject to (and the occurrence of any Closing shall be subject conditioned upon) the accuracy, as of the date hereof and at all times on and prior to during the Closing Date to the accuracy Rights Offering, of the representations and warranties of the Company contained herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder (in each case in the reasonable opinion of the Dealer-Manager) and to the following additional conditions:
(ai) The Registration Statement shall have been filed prior to become effective and the Commencement Date and no stop order refusing the effectiveness thereof Prospectus shall have been issued timely filed with the Commission in accordance with the Rules and Regulations; (ii) all post-effective amendments to the Registration Statement shall have become effective prior to the Expiration Date effective; and (iii) no stop order suspending the effectiveness thereof of the Registration Statement or any amendment or supplement thereto shall have been issued and, to the knowledge of the Company or you, and no proceedings for either purpose the issuance of any such order shall have been initiated or threatened by the Commissionthreatened, and any request of the Commission for additional information (to be included in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus, or other Exchange Offer Materials Prospectus or otherwise) shall have been disclosed to the Dealer-Manager and complied with to the Dealer-Manager’s reasonable satisfaction of your counselsatisfaction.
(b) After execution and delivery of this Agreement and prior to the Closing Date there The Dealer-Manager shall not have occurred from been advised by the respective dates as Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which information is given in the Prospectus (exclusive of any supplement thereto) (i) any material adverse change in the financial conditionDealer-Manager’s opinion, business, prospects, property, operations or results of operations of the Company whether or not arising in the ordinary course of business, or (ii) any material adverse change in the financial markets in the United States or in the international financial marketsopinion of counsel to the Dealer-Manager, any outbreak of hostilities is material, or escalation thereof or other calamity or crisis or any change or development involving omits to state a prospective change in national or international political, financial or economic conditions, which in each case the effect of which is such as to make itfact which, in the judgment of the Dealer Managers, impracticable or inadvisable to market the New Notes or to enforce contracts for the exchange and/or sale of the New NotesDealer-Manager’s opinion, or (iii) any trading suspension or material limitation in trading instituted by the Commission or The Nasdaq National Market, or generally, any trading suspension or material limitation in trading on the American Stock Exchange or the New York Stock Exchange or in The Nasdaq National Market, or the fixing of minimum or maximum prices for trading, or the establishment of required maximum ranges for prices by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or the occurrence of a material disruption in commercial banking or securities settlement or clearance services in the United Statesopinion of counsel to the Dealer-Manager, is material and is required to be stated therein or (iv) is necessary to make the declaration of a banking moratorium by either Federal or New York authoritiesstatements therein not misleading.
(c) All corporate proceedings and other legal matters in connection with incident to the authorization, form and validity of this Agreement, the Registration Statement, any Preliminary ProspectusRights, the Pricing Disclosure PackageRights Shares, the Rights Warrants, the Registration Statement and the Prospectus, and all other Exchange Offer Materials or otherwise, legal matters relating to this Agreement and the registration, authorization, issue, and delivery of the New Notes issuable in accordance with the Exchange Offer, transactions contemplated hereby shall have been executed in a manner be reasonably satisfactory in all material respects to your counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxxx Xxxxxx & Riendel LLP, outside counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-1 hereto.
(e) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-2 hereto.
(f) You shall have received the opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-3 hereto.
(g) You shall have received the opinion of XxXxxxxxx, Held & Xxxxxx Ltd., special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-4 hereto.
(h) You shall have received the opinion of Xxxxxxxx, Xxxxxxxx & Borun, special counsel to the Company with respect to patent and proprietary rights, dated the Closing Date addressed to you, substantially in the form of Exhibit B-5 hereto.
(i) You shall have received the opinion of Xxxx X. Xxxxxxx, Senior Director of Intellectual Property of the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-6 hereto.
(j) You shall have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special outside tax counsel to the Company, dated the Closing Date addressed to you, substantially in the form of Exhibit B-7 hereto. Counsel rendering the foregoing opinions in (d), (e), (f), (g), (h), (i) and (j) may rely as to questions of law not involving the laws of the United States of America (or in the case of (d) and (j), the State of New York) upon opinions of local counsel, and as to questions of fact upon representations or certifications of officers of the Company, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Dealer Dealer-Manager, and to your counsel.
(k) You shall have received on the Closing Date an opinion of Shearman & Sterling LLP in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and the Company shall have furnished to such counsel such all documents as and information that they may have requested for the purpose of enabling reasonably request to enable them to pass upon such matters.
(ld) At the time of Concurrently with the execution of this Agreement, you there shall have received from Ernst been furnished to the Dealer-Manager the signed opinion (addressed to the Dealer-Manager) of Gxxxxx Dxxx & Young Cxxxxxxx LLP, a letter counsel for the Company, dated as of such datethe date hereof, and in form and substance satisfactory to you containing statements counsel for the Dealer-Manager.
(e) Concurrently with the execution of this Agreement and information at Closing, there shall have been furnished to the Dealer-Manager the certificates of the type ordinarily included Company’s Chief Executive Officer, Chief Financial Officer and General Counsel and the Vice President, Regulatory, Quality and Clinical Affairs to the Company with respect to certain intellectual and regulatory matters dated the date hereof and as of such Closing, and in accountants’ “comfort letters” form and substance satisfactory to underwriters counsel for the Dealer-Manager.
(f) Concurrently with the execution of this Agreement and at Closing, the Company shall have furnished to the Dealer-Manager a letter of BDO, addressed to the Dealer-Manager and dated the date hereof and as of such Closing: (i) confirming that they are independent registered public accountants of the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the PCAOB and applicable rules of the Commission, and (ii) stating, as of the date of the letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than one day prior to the date of the letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information for other matters specified by the fiscal years 2000, 2001, 2002, 2003 and 2004 and the nine months ended September 30, 2005 contained in the ProspectusDealer-Manager.
(mg) You The Company shall have received by or on furnished to the effective date of the Registration StatementDealer-Manager a certificate, on the Expiration Date and by the Applicable Time, a bring-down comfort letter, dated as of the effective date of the Registration Statement (or one business day prior thereto), as of the Expiration Date (or one business day prior thereto) or the Applicable Time (or one business day prior thereto), as the case may be, from Ernst & Young LLP addressed to you which shall reaffirm the statements made in the letter referenced in (l) above.
(n) You shall have received by or on the Closing Date, a letter dated as of the Closing Date (or one business day prior thereto) as the case may be, from Ernst & Young LLP addressed to you substantially in the form of the bring-down comfort letter dated the date of this Agreement, which shall reaffirm the statements made in the letters referenced in (l) hereof and (m) above.
(o) You shall have received a certificate of the Company, dated as of the Closing Datesuch Closing, signed by the of its Chief Executive Officer or President and its Chief Financial Officer of the Company, certifying that, and you shall be satisfied stating that:
(i) To the representations best of their knowledge after reasonable investigation, the representations, warranties, covenants and warranties agreements of the Company in this Agreement Section 5 hereof are true and correct in all material respects, as if made on and as of the Closing Date or such other date as of which any representation speaks, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, as the case may be;
(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose The conditions set forth in this Section 10 have been instituted or are pending or threatened under the Securities Actfulfilled;
(iii) when Neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding;
(iv) Subsequent to the respective dates as of which information is given in the Registration Statement became effective and at the Applicable Time, and at all times subsequent thereto up to the date of such certificate, the Registration Statement, the Pricing Disclosure Package, the Prospectus, and there has not been any amendments Material Adverse Change or supplements thereto, contained all material information required to be included therein by any development involving a prospective Material Adverse Change; and
(v) They have carefully examined the Securities Act Registration Statement and the Rules and Regulations thereunder or Prospectus and, in their opinion (A) the Exchange Act Registration Statement and the applicable Rules and Regulations Prospectus, as of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act and the Rules and Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the Commission thereunder, as the case may be; the Registration Statement, and any amendment or supplement theretoEffective Date, did not and does not include any untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; the Pricing Disclosure Package and the Prospectus, and any amendment or supplement thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) since the effective Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus and has not been.
(h) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the Registration Statementlatest audited financial statements included in the Prospectus any Material Adverse Change, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as effect of which information is given is, in the Registration Statement and Prospectus and up to the date of such certificate, and except as disclosed therein, there has not been (a) any material adverse change in the financial condition, business, prospects, property, operations or results of operations judgment of the Company Dealer-Manager, so material and its subsidiaries considered adverse as one enterprise, (b) any transaction that is material to make it impracticable or inadvisable to proceed with the Company and its subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and its subsidiaries considered as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital or outstanding indebtedness of the Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the Company or any of its subsidiaries which has been sustained or will have been sustained and which has a Material Adverse EffectRights Offering.
(pi) The Company NASDAQ shall have furnished approved the Rights Shares and the shares of Common Stock underlying the Rights Warrants for listing, subject only to you such further certificates and documents as you shall reasonably request (including certificates official notice of officers of the Company) as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to your obligations hereunderissuance.
(qj) You shall have received lock-up All opinions, letters, substantially evidence and certificates mentioned above or elsewhere in the form set forth in Exhibit A hereto, from each of the executive officers and directors of the Company set forth in Schedule IV hereto.
(r) The NASD this Agreement shall have confirmed that it has not raised any objection with respect be deemed to the fairness and reasonableness of the terms and arrangements in connection with the offering of the New Notes. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to your counselcounsel for the Dealer-Manager. The Company will furnish you with If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Dealer-Manager hereunder may be canceled at, or at any time during the Rights Offering, by the Dealer-Manager. Any such number cancellation shall be without liability of conformed copies the Dealer-Manager to the Company. Notice of such opinionscancellation shall be given to the Company in writing, certificates, letters or by telephone and documents, as you shall reasonably requestconfirmed in writing.
Appears in 1 contract
