Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that the Company and the Selling Shareholders shall have performed all of their respective covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives. (b) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe & Johnxxx XXX, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that: (i) The Company has been duly organized and is validly existing as a corporation under the laws of the state of Arizona, with corporate power and authority to own, lease, license and use its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect. (ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus. (iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. (iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data). (v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.
Appears in 2 contracts
Samples: Underwriting Agreement (Rockford Corp), Underwriting Agreement (Rockford Corp)
Conditions of Obligations of the Underwriters. The several Underwriters' obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Securities which they have agreed to purchase hereunder are subject to the condition that all accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company and herein, to the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that performance by the Company and the Selling Shareholders shall have performed all Stockholders of their respective covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) hereunder, and to the following additional conditions:
(a) The Prospectus Registration Statement shall have been filed with become effective and the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives Representative shall have received notice thereof not later than 4:30 p.m., Los Angeles time, on the date of this Agreement, or at such later time or on such later date as to which you may agree in writing; on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe & Johnxxx XXX, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation under the laws of the state of Arizona, with corporate power and authority to own, lease, license and use its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counselDates, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or any similar purpose shall have been instituted or shall be pending or, to the knowledge of any Underwriter or to the knowledge of the Company, shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C., counsel to the Underwriters; and no stop order shall be in effect denying or suspending effectiveness of the Registration Statement nor shall any stop order proceedings with respect thereto be instituted or pending or threatened under the Act.
(b) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of Xxxxx Xxxxx & Xxxxx Professional Corporation, counsel for the Company, in form and substance reasonably satisfactory to counsel for you, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Colorado and is duly qualified or licensed to do business as a foreign corporation in good standing in each other jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where failure to so qualify will not have a material adverse effect in the business, properties or financial condition of the Company;
(ii) the authorized capitalization of the Company as of the date of the Prospectus was as set forth in the Prospectus; all of the shares of the Company's outstanding stock requiring authorization for issuance by the Company's Board of Directors have been duly authorized and validly issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the outstanding shares of Common Stock of the Company, to such counsel's knowledge, have not been issued in violation of the preemptive rights of any stockholder and the stockholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase any of the Shares offered hereby; except for the transfer restrictions regarding "affiliates" contained in Rule 144 promulgated under the Act and restrictions provided for in this Agreement, to the knowledge of counsel, there are no restrictions upon the voting or transfer of, any of the Shares; the Securities and the Representative's Warrants conform in all material respects to the respective descriptions thereof contained in the Prospectus; the Securities to be issued as contemplated in the Registration Statement and this Agreement have been duly authorized and, when paid, will be validly issued, fully paid and non-assessable and free of preemptive rights, if any, contained in the Company's certificate of incorporation or by-laws, or any other document, instrument or agreement known to counsel; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and the Representative's Warrants (including shares issuable upon the exercise of the Warrants which are issuable upon the exercise of the Representative's Warrants); to such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights or other rights, other than those contemplated by the Representative's Warrants or which have been waived or satisfied, for or relating to the registration of the Shares;
(iii) this Agreement and the Representative's Warrants (sometimes hereinafter collectively referred to as the "Representative Agreements") have been duly and validly authorized, executed and delivered by the Company, and assuming due execution and delivery of the Representative Agreements by you, such agreements are, or when duly executed will be, the valid and legally binding obligations of the Company except as enforceability may be limited by bankruptcy, insolvency, moratorium or other laws affecting the rights of creditors, or by general equitable principles and except as rights to indemnity and contribution hereunder may be limited by applicable securities laws or public policy;
(iv) the certificates evidencing the Stockholder Shares are, and the certificates representing the Company Shares and Warrants will be, when issued, in valid and proper legal form; the Representative's Warrants will be exercisable for shares of Common Stock of the Company in accordance with the terms of the Representative's Warrants and at the prices therein provided for; the shares of Common Stock and Warrants of the Company issuable upon exercise of the Representative's Warrants have been duly authorized and reserved for issuance upon such exercise, and such shares and Warrants, when issued upon such exercise in accordance with the terms of the Representative's Warrants and when the price is paid shall be fully paid and non-assessable;
(v) Such counsel knows of no pending or threatened legal or governmental proceedings to which the Company is a party which are required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) The execution and delivery of this Agreement by the Company and the Representative's Warrants and the incurrence of the obligations of the Company herein and therein set forth and the consummation by the Company of the transactions herein or therein contemplated will not result in a violation of, or constitute a default under, the certificate or articles of incorporation or by-laws of the Company, or in a material violation of or default under any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any of the contracts, indentures, mortgages, loan agreements, leases, joint ventures or other agreements or instruments to which the Company is a party that are filed as Exhibits to the Registration Statement or otherwise known to counsel;
(vii) The Registration Statement has become effective under the Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement is in effect, no proceedings for that purpose have been instituted or are pending before, or threatened by by, the Commission.
Commission and the Registration Statement and the Prospectus (iv) The except, in the case of both the Registration StatementStatement and any Amendment thereto, and the Prospectus and each amendment or any supplement thereto for the financial statements and notes and schedules thereto, and other financial information or statistical data contained therein, or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules Rules and regulations thereunder Regulations;
(except that viii) All descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts and other documents are accurate and fairly present the information required to be shown, and such counsel is familiar with all contracts and other documents referred to in the Registration Statement and the Prospectus and any such amendment or supplement, or filed as exhibits to the Registration Statement, and such counsel does not know of any contracts or documents of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described or filed;
(ix) No authorization, approval, consent or license of any governmental or regulatory authority or agency is necessary in connection with the authorization, issuance, transfer, sale or delivery of the Securities by the Company, in connection with the execution, delivery and performance of this Agreement or the Representative's Warrants by the Company or in connection with the taking of any action contemplated herein or therein, or the issuance of the Representative's Warrants or the Shares or Warrants underlying the Representative's Warrants, other than registration or qualification of the Shares or Warrants under applicable state or foreign securities or blue sky laws (as to which such counsel need express no opinion as to opinion) and registration under the financial statements and the notes thereto and related schedules and other financial and statistical data).Act; and
(vx) The To the extent that the statements (A) contained in the Prospectus under the captions headings "Business - Legal Proceedings," Business"Related-Party Transactions," , "Management", "Description of Capital Stock" and ", "Shares Eligible for For Future Sale" and (B) in "Legal Matters" refer to opinions of such counsel or matters of law or purport to summarize the Registration Statement in Items 14 and 15 insofar as status of litigation or purport to summarize the provisions of statutes, regulations, contracts, agreements or other documents, such statements constitute a summary have been reviewed by such counsel and accurately reflect the status of matters any such litigation, such provisions purported to be summarized and any such opinions of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.counsel;
Appears in 2 contracts
Samples: Underwriting Agreement (Navidec Inc), Underwriting Agreement (Navidec Inc)
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that the Company and the Selling Shareholders shall have performed all of their respective covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe & Johnxxx XXX, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation under the laws of the state of Arizona, with corporate power and authority to own, lease, license and use its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.of
Appears in 2 contracts
Samples: Underwriting Agreement (Rockford Corp), Underwriting Agreement (Rockford Corp)
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Date are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctaccuracy, at and as of the Closing Date or the Option Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein, and to the Selling Shareholders shall have performed all performance by the Company of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe Xxxxx & Johnxxx XXXXxXxxxxx, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
: (i) The Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the state State of ArizonaDelaware, with corporate power and authority to own, lease, license and use own its properties and conduct its business as described in the Prospectus, and ; the Company is duly qualified to transact business and is in good standing in all jurisdictions each jurisdiction in which it is known to such counsel to own or lease property or conduct business and the conduct of its business or its ownership, lease, license or use of property requires such qualification and qualification, or in which the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in materially adverse effect upon the Prospectus as of the date set forth therein. The outstanding shares business of the Company's capital stock have been duly authorized ; and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal has no direct or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectusindirect subsidiaries.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Date are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctaccuracy, at and as of the Closing Date or the Option Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein and to the Selling Shareholders shall have performed all performance by the Company of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed made within the periods of time specified by and otherwise in compliance with such Rules, and any request of the Commission pursuant for additional information (to Rule 424(bbe included in the Registration Statement or otherwise) within shall have been disclosed to the applicable time period prescribed for such filing by the Regulations Representatives and in accordance complied with Section 4(a) hereof; no to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated taken or, to the knowledge of the Company, shall be contemplated or threatened by the Commission; Commission and all requests for additional information on the part no injunction, restraining order or order of the Commission any nature by a Federal or state court of competent jurisdiction shall have been complied with to the reasonable satisfaction issued as of the RepresentativesClosing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or and, if applicable, on the Option Closing Date, as the case may be, Date the opinion of Steptoe Xxxx Xxxx Xxxx & Johnxxx XXXFreidenrich LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state State of ArizonaDelaware, with corporate power and authority to own, lease, license and use own or lease its properties and conduct its business as described in the Prospectus, Registration Statement; each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement; the Company and each of the Subsidiaries are duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its their business or its ownership, lease, license or use of property requires such qualification and qualification, or in which the failure so to qualify would have a Material Adverse Effectmaterial adverse effect upon the business of the Company and the Subsidiaries taken as a whole; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and are owned by the Company or a Subsidiary; and, to the best of such counsel's knowledge, the outstanding shares of capital stock of each of the Subsidiaries is owned free and clear of all liens, encumbrances, equities and claims, and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into any shares of capital stock of or ownership interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock as described set forth under the caption "Capitalization" in the Prospectus as Prospectus; the authorized shares of the date set forth therein. The Company's Common Stock have been duly authorized; and the outstanding shares of the Company's capital stock Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The non-assessable and none of such shares was issued in violation of any preemptive rights, rights of first refusal or other similar rights arising under the charter or by-laws of the Company, any Investor Agreement or, to the knowledge of such counsel, any other instrument or agreement.
(iii) (A) the certificate evidencing the Common Stock complies as to form of certificate for the Shares is in due and proper form and complies all material respects with the applicable requirements of the Arizona Business Corporations Act. The Shares General Corporation Law of the State of Delaware (the "DGCL") and the Company's charter and by-laws; (B) the shares of Common Stock, including the Option Shares, if any, to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and issued, paid for and delivered as contemplated hereinby this Agreement, will be validly issued, delivered, fully paid and nonassessable. No non-assessable; and (C) no preemptive rightrights, co-sale right, registration right, right rights of first refusal or other similar right of shareholders rights arising under the DGCL, the charter or by-laws of the Company, any Investor Agreement or, to the knowledge of such counsel, any other instrument or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, agreement exist with respect to any of the Shares or the issue and or sale thereof thereof.
(except for registration rights that have been waivediv) (i) pursuant to Except as described in or contemplated by the terms of the Company's Articles of Incorporation or Bylaws or (ii) Prospectus, to the knowledge of such counsel, pursuant there are no outstanding securities of the Company convertible into, exchangeable or exercisable for, or evidencing the right to purchase or subscribe for any shares of capital stock of the terms Company and there are no outstanding or authorized options, warrants or rights of any agreement or instrument to which character obligating the Company is a party to issue any shares of its capital stock or by which any securities convertible into, exchangeable or exercisable for, or evidencing the Company is bound. To right to purchase or subscribe for any shares of such stock; and except as described in the Prospectus, to the knowledge of such counsel, no rights holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to register outstanding cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iiiv) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(ivvi) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the applicable requirements of the Act and the rules Rules and regulations thereunder Regulations (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical datatherein).
(vvii) The statements (A) in the Prospectus under the captions "Business - Risk Factors-The covenants and restrictions in our existing and future debt instruments could have a negative effect on our business," "Business-Legal Proceedings," "RelatedManagement-Employment, Termination of Employment and Change-in-Control Arrangements," "Management-Stock Option Plans," "Management-2000 Employee Stock Purchase Plan," "Management-401k Plan," "Management-Limitations of Liability and Indemnification Matters," "Related Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 Prospectus, insofar as such statements constitute a summary of the Company's charter or by-laws or other documents referred to therein or matters of law, are fairly summarize in all material respects, accurate summaries and fairly present respects the information called for with respect to the Company's charter and by-laws, and such documents and matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, which they have agreed to purchase hereunder are subject to the condition that all accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company and herein, to the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that performance by the Company and the Selling Shareholders shall have performed all of their respective covenants and its obligations hereunder (to the extent performance of such covenants and obligations are due at such times) hereunder, and to the following additional conditions:
(a) The Prospectus Registration Statement shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations become effective and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives you shall have received notice thereof not later than 4:30 p.m., Eastern Standard time, on the date of this Agreement, or at such later time or on such later date as to which you may agree in writing; on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe & Johnxxx XXX, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation under the laws of the state of Arizona, with corporate power and authority to own, lease, license and use its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counselDates, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or any similar purpose shall have been instituted or shall be pending or, to the knowledge of any Underwriter or to the knowledge of the Company, shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx, counsel to the Representative; and no stop order shall be in effect denying or suspending effectiveness of the Registration Statement nor shall any stop order proceedings with respect thereto be instituted or pending or threatened under the Act.
(i) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of Stroock & Stroock & Xxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Representative, to the effect that:
(A) The Company, and each subsidiary thereof, has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state of its incorporation and is duly qualified or licensed to do business as a foreign corporation in good standing in each other jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where failure to so qualify will not have a material adverse effect in the business, properties or financial condition of the Company. The Company has the corporate power to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the Representative's Warrants;
(B) The authorized capitalization of the Company as of the date of the Prospectus was as set forth under "Capitalization" in the Registration Statement and the Prospectus; all of the shares of the Company's outstanding stock requiring authorization for issuance by the Company's Board of Directors has been duly authorized and validly issued, are fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock and Series A Preferred Stock of the Company have been duly authorized and issued in compliance with or under an exemption from registration under the Act and applicable state securities laws and have not been issued in violation of the preemptive rights of any stockholder and the stockholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase any of the Shares; except for the transfer restrictions regarding "affiliates" contained in Rule 144 promulgated under the Act and restrictions provided for in this Agreement, to the knowledge of such counsel, there are no restrictions upon the voting or transfer of any of the Shares, the Common Stock, Series A Preferred Stock and the Representative's Warrants and such Securities conform in all material respects to the respective descriptions thereof contained in the Prospectus; except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or agreements or other rights to convert any obligation into, any share of capital stock of the Company have been granted or entered into by the Company; the Shares to be issued as contemplated in the Registration Statement and this Agreement have been duly authorized and, when paid, will be validly issued, fully paid and non-assessable and free of preemptive rights contained in the Company's articles of incorporation or By-laws, or any other document, instrument or agreement known to counsel; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Representative's Warrants; neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights or other rights, other than those contemplated by the Representative's Warrants or which have been waived or satisfied, for or relating to the registration of the Securities. The Company has no subsidiaries;
(C) This Agreement and the Representative's Warrants (sometimes hereinafter collectively referred to as the "Representative Agreements") have been duly and validly authorized, executed and delivered by the Company, and assuming due execution and delivery of this Agreement by the Representative, all of such agreements are, or when duly executed will be, the valid and legally binding obligations of the Company, except as enforceability may be limited by bankruptcy, insolvency, moratorium or other laws affecting the rights of creditors, or by general equitable principles and except as rights to underwriting and contribution hereunder may be limited by applicable securities laws or public policy;
(D) The certificates evidencing the Shares are in valid and proper legal form; the Representative's Warrants will be exercisable for shares of Common Stock of the Company in accordance with the terms of the Representative's Warrants and at the prices provided therein; the shares of Common Stock of the Company issuable upon exercise of the Representative's Warrants have been duly authorized and reserved for issuance upon such exercise, and such shares, when issued upon such exercise in accordance with the terms of the Representative's Warrants and when the price is paid shall be fully paid and non-assessable;
(E) Such counsel knows of no pending or threatened legal or governmental proceedings to which the Company is a party which are required to be described or referred to in the Registration Statement which are not so described or referred to;
(F) The execution and delivery of this Agreement and the Representative's Warrants and the incurrence of the obligations of the Company herein and therein set forth and the consummation of the transactions herein or therein contemplated will not result in a violation of or default under the certificate or articles of incorporation or bylaws of the Company, or any obligation, agreement, covenant or condition contained in any material bond, debenture, note or other evidence of indebtedness or in any of the contracts, indentures, mortgages, loan agreements, leases, joint ventures or other agreements or instruments to which the Company is a party, except where such violation or default would not have a material adverse effect on the Company or result in a violation of, or constitute a default under, the certificate or articles of incorporation or by-laws of the Company;
(G) The Registration Statement has become effective under the Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement is in effect, no proceedings for that purpose have been instituted or are pending before, or threatened by by, the Commission.
Commission and the Registration Statement and the Prospectus (iv) The except, in the case of both the Registration StatementStatement and any Amendment thereto, and the Prospectus and each amendment or any supplement thereto for the financial statements and notes and schedules thereto, and other financial information or statistical data contained therein, or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules Rules and regulations Regulations;
(H) All descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts, plans, options and other documents are accurate and fairly present the information required to be shown, and such counsel is familiar with all contracts and other documents referred to in the Registration Statement and the Prospectus and any such amendment or supplement, or filed as exhibits to the Registration Statement, and such counsel does not know of any contracts or documents of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described or filed;
(I) The Underwriting Agreement and the Representative's Warrants have been duly and validly authorized, executed and delivered by the Company, and assuming due execution by the other party or parties hereto and thereto, constitute valid and binding obligations of the Company enforceable against the Company, in accordance with their respective terms, except as rights to indemnity and contribution hereunder may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency or other laws affecting the rights of creditors generally or by general equitable principles of law. The Company has full power and authority to authorize, issue and sell the Securities to be sold by it thereunder on the terms and conditions set forth therein, and no consent, approval, authorization or other order of any governmental authority is required in connection with such authorization, execution and delivery or with the authorization, issue and sale of the Securities, the Representative's Warrants or the Securities underlying the Representative's Warrants, except such as may be required under the Act, state securities laws (except that as to which such counsel need express no opinion as to opinion), or the financial statements by-laws and rules of the notes thereto and related schedules and other financial and statistical dataNational Association of Securities Dealers, Inc. ("NASD").
(vJ) The To the extent that the statements (A) contained in the Prospectus under the captions headings "Business - Trademarks," "Business - Legal Proceedings," "Related-Management - Employment Agreements," "Management - Stock Incentive Plan," "Certain Relationships and Related Party Transactions," "Description of Capital Stock," and "Shares Eligible for For Future Sale" and (B) in "Legal Matters" refer to opinions of such counsel on matters of law or purport to summarize the Registration Statement in Items 14 and 15 insofar as status of litigation or purport to summarize the provisions of statutes, regulations, contracts, agreements or other documents, such statements constitute a summary have been reviewed by such counsel and accurately reflect the status of matters any such litigation, such provisions purported to be summarized and any such opinions of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.counsel;
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Additional Shares, if any, on the Option Additional Shares Closing Date, Date are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctaccuracy, at and as of the Closing Date or the Option Additional Shares Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein, and to the Selling Shareholders shall have performed all performance by the Company of their respective covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with made, and any request of the Commission pursuant for additional information (to Rule 424(bbe included in the Registration Statement or otherwise) within shall have been disclosed to the applicable time period prescribed for such filing by the Regulations Representative and in accordance complied with Section 4(a) hereof; no to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; Commission and all requests for additional information on the part no injunction, restraining order, or order of the Commission any nature by a federal or state court of competent jurisdiction shall have been complied with to the reasonable satisfaction issued as of the RepresentativesClosing Date which would prevent the issuance of the Shares.
(b) The Representatives Representative shall have received on the Closing Date or the Option Additional Shares Closing Date, as the case may be, the opinion opinions of Steptoe & Johnxxx Stepxxx X. Xxxxxxx, X.C. and Schnader, Harrison, Segax xxx Lewix XXX, counsel for the Company, dated the Closing Date or the Option Additional Shares Closing Date, as the case may be, addressed to the Underwriters (and stating that it may be relied upon by counsel to the Underwriters, ) to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the state State of ArizonaGeorgia, with corporate power and authority to own, lease, license and use own or lease its properties and conduct its business as described in the Prospectus, Registration Statement; and the Company is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and qualification, except jurisdictions in which the failure so to qualify would have not result in a Material Adverse EffectEvent.
(ii) The Company has authorized and outstanding capital stock as described set forth under the caption "Capitalization" in the Prospectus as Prospectus; the authorized shares of the date set forth therein. The Company's Common Stock have been duly authorized; the outstanding shares of the Company's capital stock Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The non-assessable; all of the Shares conform in all material respects to the description thereof contained in the Prospectus; and the form of certificate for evidencing the Shares is in due and proper form and Common Stock complies with the requirements Georgia law in all material respects.
(iii) Each of the Arizona Business Corporations Act. Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement; each of the Subsidiaries is duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification and in which the failure to qualify would result in a Material Adverse Event; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and are owned by the Company or a Subsidiary and, to the best of such counsel's knowledge, the outstanding shares of capital stock of each of the Subsidiaries are owned free and clear of all liens, encumbrances and equities and claims, and no options, warrants, preemptive rights or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into any shares of capital stock or of ownership interests in the Subsidiaries are outstanding.
(iv) The Shares of Common Stock, including the Additional Shares, if any, to be issued and sold by the Company pursuant to this Agreement have been duly authorized andand will be validly issued, fully paid and non-assessable when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid by this Agreement; and nonassessable. No no preemptive right, co-sale right, registration right, right of first refusal or other similar right rights of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and or sale thereof thereof.
(except for registration rights that v) The Shares have been waivedapproved for listing on the Nasdaq National Market, subject to notice of issuance.
(vi) (i) pursuant Except as described in or contemplated by the Prospectus, to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the best knowledge of such counsel, pursuant there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as described in the Prospectus, to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge best of such counsel's knowledge, no rights holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to register outstanding cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company.
(vii) All offers and sales of the Company's capital stockstock prior to the date hereof and in connection with the Merger and the Acquisitions, were or shares issuable upon will be, as the exercise case may be, at all relevant times duly registered under the Act or exempt from the registration requirements of outstanding warrants, options, convertible the Act and were duly registered or exempt from the registration requirements of applicable state securities or blue sky laws.
(viii) Each of the Acquisition Agreements and the Merger Agreement has been duly authorized, executed and delivered by the Company and each of the parties thereto and constitutes a legally binding obligation of each such party and is enforceable against each such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, by general principles of equity whether such enforceability is considered in a proceeding in law or equity and by the discretion of the court before which any proceeding therefor may be brought.
(ix) Except as disclosed in the Registration Statement, each of the Company and its Subsidiaries owns, possesses or has obtained all required consents and approvals from all Manufacturers and any other rights to acquire shares of such capital stock, exist which have not been exercised or waived automobile distributors with respect to the offering Acquisitions and the Merger and the issuance and sale of the Shares hereunder. To the best of such counsel's knowledge, the list attached as Schedule II hereto is a complete and accurate list of all Manufacturers from which the Company is required to obtain consent or approval with respect to the transactions contemplated by the Registration Statement. The capital stock Acquisition Agreements and the Merger Agreement and the issuance and sale of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the ProspectusShares hereunder.
(iiix) The Registration Statement has become effective under the Act and, Act; any required filing of the Preliminary Prospectus pursuant to Rule 424(a) or of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by such Rule; and to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(ivxi) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules applicable Rules and regulations Regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical datacontained therein).
(vxii) The descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings or contracts and other documents and statements of law or legal conclusions are accurate in all material respects and fairly present the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Registration Statement or Prospectus that are not described as required.
(xiii) The statements (A) in the Prospectus under the captions "Business - Legal ProceedingsThe Merger," "RelatedThe Acquisitions," "Management-Party Executive Officers, Directors; Key Personnel," "Management-Incentive Stock Plan," "Management-Executive Employment Agreements," "Certain Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are fairly summarize in all material respects, accurate summaries and fairly present respects the information called for with respect to such documents and matters.
Appears in 1 contract
Samples: Underwriting Agreement (Sunbelt Automotive Group Inc)
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Date are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctaccuracy, at and as of the Closing Date or the Option Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein, and to the Selling Shareholders shall have performed all performance by the Company of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe Wilson, Sonsini, Xxxxxxxx & Johnxxx XXXXxxxxx, Professional Corporation, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
: (i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state State of ArizonaDelaware, with full corporate power and authority to own, lease, license and use own its properties and conduct its business as described in the Prospectus, and the Company is duly qualified to transact business and is in good standing in all jurisdictions in which the ownership and leasing of property or the conduct of its their business or its ownership, lease, license or use of property requires such qualification and qualification, except where the failure so to qualify would not have a Material Adverse Effect.
material adverse effect upon the business, condition (iifinancial or other) of the Company. The Company has authorized full corporate power and outstanding capital stock authority to own its properties and conduct its business as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Date are subject to the condition that accuracy, in all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctmaterial respects, at and as of the Closing Date or the Option Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein, and to the Selling Shareholders shall have performed all performance by the Company of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with made, and any request of the Commission pursuant for additional information (to Rule 424(bbe included in the Registration Statement or otherwise) within shall have been disclosed to the applicable time period prescribed for such filing by the Regulations Representatives and in accordance complied with Section 4(a) hereof; no to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; Commission and all requests for additional information on the part no injunction, restraining order, or order of the Commission any nature by a Federal or state court of competent jurisdiction shall have been complied with to the reasonable satisfaction issued as of the RepresentativesClosing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe Wilsxx Xxxxxxx Xxxxxxxx & Johnxxx XXXXosaxx, X.C., counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters (and stating that it may be relied upon by counsel to the Underwriters, ) to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state State of Arizona, Delaware with corporate power and authority to own, lease, license and use own or lease its properties and conduct its business as described in the Prospectus, Registration Statement and the Company is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and qualification, or in which the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in materially adverse effect upon the Prospectus as of the date set forth therein. The outstanding shares business of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Date are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correctaccuracy, at and as of the Closing Date or the Option Closing Date, as the case may be, of the condition that representations and warranties of the Company contained herein, and to the Selling Shareholders shall have performed all performance by the Company of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 415, Rule 424 and Rule 430A of the Rules and Regulations shall have been filed made, and any request of the commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the Underwriters and complied with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; Commission and all requests for additional information on the part no injunction, restraining order, or order of the Commission any nature by a Federal or state court of competent jurisdiction shall have been complied with to the reasonable satisfaction issued as of the RepresentativesClosing Date which would prevent the issuance of the Shares.
(b) The Representatives Underwriters shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe Akin, Gump, Strauss, Hauex & Johnxxx XXXXeld, X.L.P., counsel for the Company, dated the Closing Date or the Option Closing Date, as the case 17 16 may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state State of ArizonaTexas, with corporate power and authority to own, lease, license and use own or lease its properties and conduct its business as described in the Prospectus, and ; each of the Subsidiaries is duly qualified to transact business and is validly existing as a corporation in good standing in all jurisdictions in which under the conduct laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business or its ownership, lease, license or use of property requires such qualification as described in the Prospectus; and the failure so outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to qualify would have the best of such counsel's knowledge, except (A) as reflected in the Company's financial statements, (B) as described in the Registration Statement, are owned by the Company or a Material Adverse EffectSubsidiary or (C) as set forth on Schedule II hereto; and, to such counsel's knowledge, the outstanding shares of capital stock of each of the Subsidiaries are owned free and clear of all liens, encumbrances and security interests and no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into any shares of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock as described set forth under the caption "Capitalization" in the Prospectus as Prospectus; the authorized shares of its Common Stock have been duly authorized; the date set forth therein. The outstanding shares of the Company's capital stock its Common Stock have been duly authorized and validly issued and are fully fully-paid and nonassessable. The form non-assessable; all of certificate for the Shares is conform to the description thereof contained in due and proper form and complies with the requirements of Prospectus; the Arizona Business Corporations Act. The Shares Shares, including the Option Shares, if any, to be issued and sold by the Company pursuant to this Agreement have been duly authorized andand will be validly issued, fully paid and non-assessable when issued and paid for as contemplated hereinby this Agreement; and, will be validly issuedto the knowledge of such counsel, delivered, fully paid and nonassessable. No no preemptive right, co-sale right, registration right, right rights of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, stockholders exist with respect to any of the Shares or the issue and sale thereof thereof. 18 17
(except for registration rights that have been waivediii) (i) pursuant to Except as described in or contemplated by the terms of the Company's Articles of Incorporation or Bylaws or (ii) Prospectus, to the knowledge of such counsel, pursuant there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the terms Company and there are no outstanding or authorized options, warrants, or rights of any agreement or instrument to which character obligating the Company is a party to issue any shares of its capital stock or by which any securities convertible or exchangeable into or evidencing the Company is bound. To right to purchase or subscribe for any shares of such stock; and except as described in the Prospectus, to the knowledge of such counsel, no rights holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to register outstanding cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iiiiv) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(ivv) The Registration Statement, all Preliminary Prospectuses, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein (each as amended to date) comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to to, the statistical information contained in the Prospectus or financial statements and the notes thereto and related statements, schedules and other financial and statistical datainformation incorporated by reference therein).
(vvi) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings,___________", "________________" "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.and
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several --------------------------------------------- obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, are subject to the condition that all representations and warranties of the Company and the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that the Company and the Selling Shareholders shall have performed all of their respective its covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued issued, and no proceedings for that purpose shall have been initiated or threatened threatened, by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative.
(b) The Representatives Representative shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe Xxxxxx & Johnxxx XXXWhitney LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
: (i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the state of ArizonaColorado, with corporate power and authority to own, lease, license and use own or lease its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(iv) The Registration Statement, the Prospectus and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) in the Prospectus under the captions "Business - Legal Proceedings," "Related-Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in the Registration Statement in Items 14 and 15 insofar as such statements constitute a summary of matters of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.
Appears in 1 contract
Samples: Underwriting Agreement (Colorado Business Bankshares Inc)
Conditions of Obligations of the Underwriters. The several Underwriters' obligations of the Underwriters to purchase and pay for the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date, Securities which they have agreed to purchase hereunder are subject to the condition that all accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company and herein, to the Selling Shareholders contained herein are true and correct, at and as of the Closing Date or the Option Closing Date, as the case may be, the condition that performance by the Company and the Selling Shareholders shall have performed all Stockholders of their respective covenants and obligations hereunder (to the extent performance of such covenants and obligations are due at such times) hereunder, and to the following additional conditions:
(a) The Prospectus Registration Statement shall have been filed with become effective and the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives Representative shall have received notice thereof not later than 4:30 p.m., Los Angeles time, on the date of this Agreement, or at such later time or on such later date as to which you may agree in writing; on the Closing Date or the Option Closing Date, as the case may be, the opinion of Steptoe & Johnxxx XXX, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation under the laws of the state of Arizona, with corporate power and authority to own, lease, license and use its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business or its ownership, lease, license or use of property requires such qualification and the failure so to qualify would have a Material Adverse Effect.
(ii) The Company has authorized and outstanding capital stock as described in the Prospectus as of the date set forth therein. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and are fully paid and nonassessable. The form of certificate for the Shares is in due and proper form and complies with the requirements of the Arizona Business Corporations Act. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, delivered, fully paid and nonassessable. No preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders of the Company, or of holders of warrants, options, convertible securities or other rights to acquire shares of capital stock of the Company, exist with respect to any of the Shares or the issue and sale thereof (except for registration rights that have been waived) (i) pursuant to the terms of the Company's Articles of Incorporation or Bylaws or (ii) to the knowledge of such counsel, pursuant to the terms of any agreement or instrument to which the Company is a party or by which the Company is bound. To the knowledge of such counsel, no rights to register outstanding shares of the Company's capital stock, or shares issuable upon the exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not been exercised or waived with respect to the offering contemplated by the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects as to legal matters to the description thereof contained in the Prospectus.
(iii) The Registration Statement has become effective under the Act and, to the knowledge of such counselDates, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or any similar purpose shall have been instituted or shall be pending or, to the knowledge of any Underwriter or to the knowledge of the Company, shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C., counsel to the Underwriters; and no stop order shall be in effect denying or suspending effectiveness of the Registration Statement nor shall any stop order proceedings with respect thereto be instituted or pending or threatened under the Act.
(b) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of Xxxxx Xxxxx & Xxxxx Professional Corporation, counsel for the Company, in form and substance reasonably satisfactory to counsel for you, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Colorado and is duly qualified or licensed to do business as a foreign corporation in good standing in each other jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where failure to so qualify will not have a material adverse effect in the business, properties or financial condition of the Company;
(ii) the authorized capitalization of the Company as of the date of the Prospectus was as set forth in the Prospectus; all of the shares of the Company's outstanding stock requiring authorization for issuance by the Company's Board of Directors have been duly authorized and validly issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the outstanding shares of Common Stock of the Company, to such counsel's knowledge, have not been issued in violation of the preemptive rights of any stockholder and the stockholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase any of the Shares offered hereby; except for the transfer restrictions regarding "affiliates" contained in Rule 144 promulgated under the Act and restrictions provided for in this Agreement, to the knowledge of counsel, there are no restrictions upon the voting or transfer of, any of the Shares; the Securities and the Representative's Warrants conform in all material respects to the respective descriptions thereof contained in the Prospectus; the Securities to be issued as contemplated in the Registration Statement and this Agreement have been duly authorized and, when paid, will be validly issued, fully paid and non-assessable and free of preemptive rights, if any, contained in the Company's certificate of incorporation or by-laws, or any other document, instrument or agreement known to counsel; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and the Representative's Warrants (including shares issuable upon the exercise of the Warrants which are issuable upon the exercise of the Representative's Warrants); to such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights or other rights, other than those contemplated by the Representative's Warrants or which have been waived or satisfied, for or relating to the registration of the Shares;
(iii) this Agreement and the Representative's Warrants (sometimes hereinafter collectively referred to as the "Representative Agreements") have been duly and validly authorized, executed and delivered by the Company, and assuming due execution and delivery of the Representative Agreements by you, such agreements are, or when duly executed will be, the valid and legally binding obligations of the Company except as enforceability may be limited by bankruptcy, insolvency, moratorium or other laws affecting the rights of creditors, or by general equitable principles and except as rights to indemnity and contribution hereunder may be limited by applicable securities laws or public policy;
(iv) the certificates evidencing the Stockholder Shares are, and the certificates representing the Company Shares and Warrants will be, when issued, in valid and proper legal form; the Representative's Warrants will be exercisable for shares of Common Stock of the Company in accordance with the terms of the Representative's Warrants and at the prices therein provided for; the shares of Common Stock and Warrants of the Company issuable upon exercise of the Representative's Warrants have been duly authorized and reserved for issuance upon such exercise, and such shares and Warrants, when issued upon such exercise in accordance with the terms of the Representative's Warrants and when the price is paid shall be fully paid and non-assessable;
(v) Such counsel knows of no pending or threatened legal or governmental proceedings to which the Company is a party which are required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) The execution and delivery of this Agreement by the Company and the Representative's Warrants and the incurrence of the obligations of the Company herein and therein set forth and the consummation by the Company of the transactions herein or therein contemplated will not result in a violation of, or constitute a default under, the certificate or articles of incorporation or by-laws of the Company, or in a material violation of or default under any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any of the contracts, indentures, mortgages, loan agreements, leases, joint ventures or other agreements or instruments to which the Company is a party that are filed as Exhibits to the Registration Statement or otherwise known to counsel;
(vii) The Registration Statement has become effective under the Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement is in effect, no proceedings for that purpose have been instituted or are pending before, or threatened by by, the Commission.
Commission and the Registration Statement and the Prospectus (iv) The except, in the case of both the Registration StatementStatement and any Amendment thereto, and the Prospectus and each amendment or any supplement thereto for the financial statements and notes and schedules thereto, and other financial information or statistical data contained therein, or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules Rules and regulations thereunder Regulations;
(except that viii) All descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts and other documents are accurate and fairly present the information required to be shown, and such counsel is familiar with all contracts and other documents referred to in the Registration Statement and the Prospectus and any such amendment or supplement, or filed as exhibits to the Registration Statement, and such counsel does not know of any contracts or documents of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described or filed; (ix) No authorization, approval, consent or license of any governmental or regulatory authority or agency is necessary in connection with the authorization, issuance, transfer, sale or delivery of the Securities by the Company, in connection with the execution, delivery and performance of this Agreement or the Representative's Warrants by the Company or in connection with the taking of any action contemplated herein or therein, or the issuance of the Representative's Warrants or the Shares underlying the Representative's Warrants, other than registration or qualification of the Shares under applicable state or foreign securities or blue sky laws (as to which such counsel need express no opinion as to opinion) and registration under the financial Act; and (x) To the extent that the statements and the notes thereto and related schedules and other financial and statistical data).
(v) The statements (A) contained in the Prospectus under the captions headings "Business - Legal Proceedings," Business"Related-Party Transactions," , "Management", "Description of Capital Stock" and ", "Shares Eligible for For Future Sale" and (B) in "Legal Matters" refer to opinions of such counsel or matters of law or purport to summarize the Registration Statement in Items 14 and 15 insofar as status of litigation or purport to summarize the provisions of statutes, regulations, contracts, agreements or other documents, such statements constitute a summary have been reviewed by such counsel and accurately reflect the status of matters any such litigation, such provisions purported to be summarized and any such opinions of law, are in all material respects, accurate summaries and fairly present the information called for with respect to such matters.counsel;
Appears in 1 contract
Samples: Underwriting Agreement (Navidec Inc)
