Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission. (b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading. (c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus. (d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehex & Xrenxxx, xxunsel for the Company. (e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date. (f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (g) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter. (h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; (ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and (iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12 (i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company. (j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested. (k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Alteon Inc /De), Underwriting Agreement (Alteon Inc /De)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser Purchasers hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, :
(i) the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any major disruption of settlements of securities or clearance services in the United States; and
(iv) there shall not have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a Purchaser, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the purchase and sale of and payment for the Shares.
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit B hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehex Xxxxx & XrenxxxXxxxxxx, xxunsel LLP, counsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the each Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The several obligations of the Purchaser hereunder Purchasers under this Agreement are subject to the accuracy, satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and at the Closing Date (as if made at the Closing Date), of respectively. The Company and compliance the Guarantors shall have performed or complied with all representations, warranties and agreements of the Company agreements herein contained herein, and required to be performed or complied with by them at or prior to the performance by the Company of its obligations hereunder and to the following additional conditions:Closing Date.
(ab) The Prospectus Offering Memorandum shall have been filed with printed and copies distributed to the Commission in accordance with Purchasers not later than 10:00 a.m., New York City time, on the Rules and Regulations and Section 4(a) date following the date of this Agreement. No Agreement or at such later date and time as to which you may agree, and no stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement Notes or of Guarantees in any part thereof jurisdiction referred to in Section 4(e) shall have been issued and no proceedings proceeding for that purpose shall have been instituted commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of any of the Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company or any Guarantor, threatened against, the PurchaserCompany, shall be contemplated by any Guarantor or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would prohibit, interfere with or adversely affect the Commission.
(b) The Purchaser shall not issuance of the Notes or would have advised a Material Adverse Effect; and no stop order preventing the Company that use of the Registration Statement or the ProspectusOffering Memorandum, or any amendment thereof or supplement thereto, contains an untrue statement or any order asserting that any of fact which, in your opinion, is material, or omits the transactions contemplated by this Agreement are subject to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingregistration requirements of the 1933 Act shall have been issued.
(cd) Except as set forth in At the Registration Statement or as contemplated or required Closing Date, (A) there have been no transactions entered into by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligationsand its subsidiaries (including, direct or contingentwithout limitation, or entered into any material transactionsXxxxxx, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; KUA and there shall not have been any change Santee) in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (each case other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising those in the ordinary course of business), in which are material with respect to the general affairsCompany and its subsidiaries (including, condition without limitation, Xxxxxx, KUA and Santee) considered as one enterprise; and (financial B) there has been no dividend or otherwise)distribution of any kind declared, business, key personnel, property, net worth paid or results made by the Company on any class of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectusits capital stock.
(de) You shall have received an opinion substantially in the form previously agreed upona certificate, dated the Closing Date, signed by the President or any Vice President and the principal financial or accounting officer of Smiththe Company confirming, Stratton, Wise, Hehex & Xrenxxx, xxunsel for the Company.
(e) On as of the Closing Date, there shall have been furnished to you the opinion matters set forth in paragraphs (a), (b), (c) and (d) of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Datethis Section 7.
(f) On the Closing Date, there the Purchasers shall have been furnished to received the Purchaserfavorable opinion, such opinion or opinions from Morgxxdated as of Closing Date, of Xxxxx & Xockxxx XXXXxxxx P.L.L.C., counsel for the PurchaserCompany, dated in form and substance satisfactory to counsel for the Purchasers, to the effect set forth in Exhibit B hereto and to such Closing Date further effect as counsel to the Purchasers may reasonably request. In rendering such opinion, such counsel shall state (A) that such opinion is limited to matters arising under the laws of the State of Washington, and (B) that, in rendering their opinions pursuant to this Agreement, Xxxxxxx Xxxxxxx & Xxxxxxxx and Xxxxx & Xxxx LLP each may rely upon such opinion, as if it were addressed to youthem, with respect as to all matters arising under the laws of the State of Washington. In rendering such opinion, Xxxxx & Gates P.L.L.C. may rely (i) as to matters involving the application of the laws of any other state upon the opinion of local counsel satisfactory to the formation Purchasers (which opinion shall be dated and furnished to the Purchasers at the Closing Date, shall be satisfactory in form and substance to counsel for the Purchasers and shall expressly state that the Purchasers may rely on such opinion as if it were addressed to them), provided that Xxxxx & Xxxxx P.L.L.C. shall state in their opinion that they believe that they and the Purchasers are justified in relying upon such opinion and (ii) as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company, Xxxxxx, Santee and KUA and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the validity Legal Opinion Accord of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such mattersABA Section of Business Law (1991).
(g) On the Closing Date, the Purchaser Purchasers shall have received a letter of Arthxx Xxxexxxx XXXthe favorable opinion, dated as of Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, in form and substance satisfactory to counsel for the Purchasers, to the effect set forth in Exhibit C hereto and to such Closing Date and addressed further effect as counsel for the Purchasers may reasonably request. In rendering such opinion, such counsel shall state (A) that such opinion is limited to you, confirming that they are independent public accountants within matters arising under the meaning laws of the Act and are in compliance with State of New York, the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X General Corporation Law of the Commission, State of Delaware and stating, as the federal laws of the date United States of America and (B) that insofar as such letter opinion relates to matters arising under the laws of the States of Washington or California, such counsel has relied upon the opinion of Xxxxx & Gates P.L.L.C. delivered pursuant to Section 7(f) hereof or upon the opinion of O'Melveny & Xxxxx LLP delivered pursuant to Section 7(h) hereof, respectively. In rendering such opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely (or, with respect i) as to matters involving changes or developments since the respective dates as application of which specified financial information is given in the Prospectus, as laws of a date not more than five days prior any other state upon the opinion of local counsel satisfactory to the date of such letter), the conclusions Purchasers (which opinion shall be dated and findings of said firm with respect furnished to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered Purchasers on the Closing Date Date, shall be satisfactory in form and substance to confirm counsel for the conclusions Purchasers and findings set forth shall expressly state that the Purchasers may rely on such opinion as if it were addressed to them), provided that Xxxxxxx Xxxxxxx & Xxxxxxxx shall state in their opinion that they believe that they and the Purchasers are justified in relying upon such prior letteropinion and (ii) as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company, Xxxxxx, Santee and KUA and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(h) On the Closing Date, there the Purchasers shall have been received the favorable opinion, dated as of Closing Date, of O'Melveny & Xxxxx LLP, counsel for Xxxxxx, in form and substance satisfactory to counsel for the Purchasers, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. In rendering such opinion, such counsel shall state (A) that such opinion is limited to matters arising under the laws of the State of California and (B) that, in rendering their opinions pursuant to this Agreement, Xxxxxxx Xxxxxxx & Xxxxxxxx and Xxxxx & Xxxx LLP may rely upon such opinion, as if it were addressed to them, as to all matters arising under the laws of the State of California. In rendering such opinion, O'Melveny & Xxxxx LLP may rely (i) as to matters involving the application of the laws of any other state upon the opinion of local counsel satisfactory to the Purchasers (which opinion shall be dated and furnished to youthe Purchasers on the Closing Date, shall be satisfactory in form and substance to counsel for the Purchasers and shall expressly state that the Purchasers may rely on such opinion as the Purchaser, a certificate, dated such Closing Date and if it were addressed to youthem), signed by provided that O'Melveny & Xxxxx LLP shall state in their opinion that they believe that they and the chief executive officer Purchasers are justified in relying upon such opinion and by (ii) as to matters of fact (but not as to legal conclusions), to the chief financial officer extent they deem proper, on certificates of responsible officers of the Company, Xxxxxx and Santee and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the effect that:Legal Opinion Accord of the ABA Section of Business Law (1991).
(i) The representations and warranties of On the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, the Purchasers shall have received the favorable opinion, dated as of Closing Date, of Xxxxxxxxx & Xxxxxxxxxxx, P.C., counsel for the Company, in form and substance satisfactory to counsel for the Purchasers, to the effect set forth in Exhibit E hereto and to such further effect as counsel to the Purchasers may reasonably request. In rendering such opinion, such counsel shall state that such opinion is limited to matters arising under the laws of the State of Illinois and the Company has complied with all General Corporation Law of the agreements State of Delaware. In rendering such opinion, Xxxxxxxxx & Xxxxxxxxxxx, P.C. may rely (i) as to matters involving the application of the laws of any other state upon the opinion of local counsel satisfactory to the Purchasers (which opinion shall be dated and satisfied all furnished to the conditions on its part to be performed or satisfied Purchasers at or prior to such the Closing Date;
, shall be satisfactory in form and substance to counsel for the Purchasers and shall expressly state that the Purchasers may rely on such opinion as if it were addressed to them), provided that Xxxxxxxxx & Xxxxxxxxxxx, P.C. shall state in their opinion that they believe that they and the U.S. Underwriters are justified in relying upon such opinion and (ii) No stop order or other order suspending the effectiveness as to matters of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted orfact (but not as to legal conclusions), to the best extent they deem proper, on certificates of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, responsible officers of the Company, Xxxxxx and Santee and public officials. Such opinion shall not state that it is to be governed or any of its subsidiariesqualified by, or that it is otherwise subject to, any material adverse change treatise, written policy or any development involving a prospective material adverse change (whether or not arising in other document relating to legal opinions, including, without limitation, the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations Legal Opinion Accord of the Company and its subsidiaries, taken as a whole, and ABA Section of Business Law (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise1991), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company You shall have furnished received an opinion, dated the Closing Date, of Xxxxx & Xxxx LLP, your counsel, in form and substance reasonable satisfactory to you and counsel for the Purchaser you, covering such additional documents, certificates and evidence matters as you or they may have reasonably requestedare customarily covered in such opinions.
(k) All necessary filings Xxxxx & Wood LLP shall have been furnished with such documents and opinions, in addition to those set forth above, as they may reasonable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 7 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(l) At the time of the execution of this Agreement, the Purchasers shall have received from each of Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP a letter or letters dated such date, in form and substance satisfactory to the Purchasers, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information of the Company, KUI and Xxxxxx, as applicable, contained in the Offering Memorandum.
(m) On the Closing Date, the Purchasers shall have received from each of Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP a letter or letters, dated as of the Closing Date, to the effect that they reaffirm the statements made as required and all filing fees in the letter or letters furnished pursuant to subsection (l) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(n) On the Closing Date, each condition to the closing contemplated by the Xxxxxx Merger Agreement shall have been paid to effect the listing satisfied or waived. There shall exist at and as of the Firm Shares Closing Date (after giving effect to the transactions contemplated by the Purchase Agreements and the Debt Agreement) no conditions that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Xxxxxx Merger Agreement. Prior to or concurrently with the purchase of the Notes by the Purchasers, (i) the Company shall have consummated the Xxxxxx Merger pursuant to the Xxxxxx Merger Agreement and on terms that conform to the AMEXdescription thereof in the Offering Memorandum, (ii) the Xxxxxx Merger shall have become effective pursuant to the laws of the State of California; (iii) Xxxxxx shall survive the Xxxxxx Merger and shall be a wholly-owned direct subsidiary of the Company and (iv) Xxxxxx shall have executed a copy of and become a party to this Agreement and the Company shall have delivered to the Purchasers evidence, in form and substance satisfactory to the Purchasers that the conditions specified in this paragraph shall have been satisfied.
(o) At or prior to the Closing Date, (i) the New Credit Agreement, the Bank Guaranty and the Bank Security Agreements and all ancillary instruments and agreements shall have been executed and delivered by the parties thereto and shall be in form and substance satisfactory to the Purchasers, and the Company shall have furnished the Purchasers with copies thereof; and (ii) all conditions precedent to the effectiveness of the New Credit Agreement, and (except for the delivery of notices of borrowings, officer's bring-down certificates and other customary documentation required as a condition to a borrowing) all conditions precedent to the right of the Company to make borrowings under the New Credit Agreement, shall have been satisfied or waived and the New Credit Agreement shall be effective.
(p) Concurrently with the purchase of the Notes by the Purchasers, the Underwriters shall have purchased and paid for the Initial Securities under the Purchase Agreements. All such opinions, certificates, letters and other documents required by this Section 7 to be delivered to you will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and counsel for the Purchaseryou. The Company and the Guarantors will furnish you the Purchasers with such conformed copies or photocopies of such opinions, certificates, letters and other documents as you they shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the ------------------------------------- Purchaser hereunder under this Agreement are subject to the accuracy, satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance respectively. The Company shall have performed or complied with all representations, warranties and agreements of the Company agreements herein contained herein, and required to be performed or complied with by it at or prior to the performance by the Company of its obligations hereunder and to the following additional conditions:Closing Date.
(ab) The Prospectus Offering Memorandum shall have been filed with printed and copies distributed to the Commission in accordance with Purchaser not later than 5:00 p.m., New York City time, on the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such later date and time as to which you may agree, and no stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of Series A Notes in any part thereof jurisdiction referred to in Section 4(e) shall have been issued and no proceedings proceeding for that purpose shall have been instituted commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of any of the Series A Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company, threatened against, the Company or any of its subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would prohibit, interfere with or adversely affect the Purchaserissuance of the Series A Notes or would have a Material Adverse Effect, shall be contemplated by or in any manner draw into question the Commission.
(b) The Purchaser shall not have advised validity of this Agreement, the Company that Note Indenture, the Series A Notes or the Registration Statement or Rights Agreement; and no stop order preventing the Prospectususe of the Offering Memorandum, or any amendment thereof or supplement thereto, contains an untrue statement or any order asserting that any of fact which, in your opinion, is material, or omits the transactions contemplated by this Agreement are subject to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingregistration requirements of the Act shall have been issued.
(cd) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusOffering Memorandum, the Company (i) there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or the long-term debt, or material increase in the short- term debt, of the Company and its subsidiaries considered as a whole from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock, and (iii) neither the Company nor any of its subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, that are material, individually or entered into any material transactionsin the aggregate, or declared or paid any dividends or made any distribution to the Company and its subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet included in the Offering Memorandum. Since the date hereof and since the dates as of any kind with respect to its capital stock; and which information is given in the Offering Memorandum, there shall not have been any change in Material Adverse Change.
(e) You shall have received certificates, dated the capital stockClosing Date, signed by (i) the President or any material change Vice President and (ii) a principal financial or accounting officer of the Company confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 7.
(f) You shall have received on the short-term or long-term debt Closing Date an opinion (satisfactory to you and your counsel), dated the Closing Date, of Ropes & Gray, counsel for the Company, or any issuance in the form of options Exhibit A hereto. You shall also have received an opinion (other than options granted pursuant reasonably satisfactory to the Company's Stock Option Plansyou and your counsel), warrantsdated the Closing Date, convertible securities or other rights of Xxxxxx, XxxXxxxxx, Xxxxxxx & Xxxxxxx with respect to purchase the capital stock of the Company or any material adverse change or any development all matters involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the ProspectusNew York law.
(dg) You shall have received an opinion substantially in the form previously agreed upon(satisfactory to you and your counsel), dated the Closing Date, of SmithXxxx Xxxxxxxx, StrattonEsq., Wise, Hehex & Xrenxxx, xxunsel General Counsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties To the best of such General Counsel's knowledge, the Company and its subsidiaries own or possess adequate licenses or other rights to use all trademarks, service marks and trade names necessary to conduct the business now or proposed to be conducted by them as described in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, the Offering Memorandum and the Company has complied and its subsidiaries have not received any notice of infringement of or conflict with all (and know of no such infringement of or conflict with) asserted rights of others with respect to any trademarks, service marks or trade names which could reasonably be expected to result in any material adverse effect upon the agreements Company and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Datesubsidiaries taken as one enterprise;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to To the best of their such General Counsel's knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate Company and its subsidiaries have carefully examined the Registration Statement obtained all permits, consents and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information authorizations required to be included therein, obtained by them under the Registration Statement, Environmental Laws except where the failure to do so would not individually or any amendment thereof, does not contain any untrue statement of in the aggregate have a material fact adverse effect on the current or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingfuture consolidated financial position, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, stockholders' equity (Bdeficit) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, subsidiaries taken as a wholeone enterprise, and (D) any such permits, consents and authorizations remain in full force and effect. To the best of such General Counsel's knowledge, the Company and its subsidiaries are in compliance with the Environmental Laws in all respects except as stated where the failure to be in compliance would not individually or in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is aggregate have a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in effect on the condition current or future consolidated financial position, stockholders' equity (financial or otherwise), business deficit) or results of operations of the Company and its subsidiaries, subsidiaries taken as one enterprise, and there is no pending or, to the Company's or its subsidiaries' knowledge, threatened, action or proceeding against the Company and its subsidiaries alleging violations of the Environmental Laws; and
(iii) To the best of such General Counsel's knowledge, neither the Company nor ICON Health & Fitness, Inc. is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a whole. 12party or by which it or any of its properties may be bound except for such violations or defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity (deficit) or results of operation of the Company and its subsidiaries taken as one enterprise.
(h) You shall have received an opinion, dated the Closing Date, of Xxxx, Xxxxxxx, Xxxxxxx, Xxxx & Handler, LLP, your counsel, in form and substance reasonably satisfactory to you, covering such matters as are customarily covered in such opinions.
(i) At the time this Agreement is executed and delivered by the Company and on the Closing Date, you shall have received letters, substantially in the form previously approved by you, from Price Waterhouse LLP, Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants, with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(j) Xxxx, Xxxxxxx, Xxxxxxx, Xxxx & Handler, LLP, shall have been furnished with such documents and opinions, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 7 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to you such further information, certificates and documents as you may reasonably request.
(l) The Company shall have entered into the Note Indenture and you shall have received counterparts, conformed as executed, thereof.
(m) The Company shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(n) The Purchaser shall have received duly executed lock up agreementsa solvency opinion, dated the Closing Date, of American Appraisal Associates, in the form provided satisfactory to the Company Purchaser and such opinion shall be accompanied by counsel a letter addressed to the Purchaser, from each officer and director of the CompanyPurchaser entitling it to rely on such opinion.
(jo) The Company shall have furnished obtained a consent under the Credit Agreement (as defined in the Note Indenture) in form and substance reasonably satisfactory to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXCompany. All such opinions, certificates, letters and other documents required by this Section 7 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and counsel for the Purchaseryou. The Company will furnish you the Purchaser with such conformed copies of such opinions, certificates, letters and other documents as you they shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the Purchaser Purchasers hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, :
(i) the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any major disruption of settlements of securities or clearance services in the United States; and
(iv) there shall not have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a Purchaser, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the purchase and sale of and payment for the Shares.
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit B hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehex Heher & XrenxxxBrennan, xxunsel counsel for the Company.
(e) On the Closing DateDxxx, there shall thexx xxxxl have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the each Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) EXECUTION COPY subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the each Purchaser hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus prospectus supplement shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a3(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement Statements or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the PurchaserPurchasers, shall be contemplated by the Commission.
(b) The No Purchaser shall not have advised the Company that the Registration Statement Statements or the ProspectusProspectuses, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your such Purchaser's opinion, is material, or omits to state a fact which, in your such Purchaser's opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement Statements or as contemplated or required by any document contained or incorporated by reference therein therein, subsequent to the respective dates as of which information is given in the Registration Statement Statements and the Prospectus, Prospectuses the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, Company that, in your a Purchaser's judgment, makes it impractical or inadvisable to offer or deliver purchase the Firm Shares on the terms and in the manner contemplated in the Prospectus.Prospectuses;
(d) You Each Purchaser shall have received an opinion substantially in the form previously agreed uponattached as Exhibit C hereto, dated the Closing Date, of Smith, Stratton, Wise, Hehex Xxxxx & XrenxxxXxxxxxx, xxunsel LLP, counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the each Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to yousuch Purchaser, signed by the chief executive officer and by the chief financial principal accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement Statements or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement Statements and the ProspectusProspectuses, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration StatementStatements, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the ProspectusProspectuses, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration StatementStatements, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement Statements and the ProspectusProspectuses, except as set forth in the Registration Statement Statements or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the ProspectusProspectuses, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrantswarrants or the conversion of outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement Statements and the ProspectusProspectuses, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the CompanyMaterial Adverse Effect.
(jf) The Company shall have furnished to you and counsel for the Purchaser Purchasers such additional documents, certificates and evidence as you or they may have reasonably requested.
(kg) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The obligations of the Purchaser ------------------------------------- hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth contemplated in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the such Closing Date, of SmithXxxxxx & Xxxxxxx LLP, Stratton, Wise, Hehex & Xrenxxx, xxunsel counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of DechertSchwegman, Lundberg, Xxxxxxxx & Xxxxx, P.A., special patent counsel for the Company substantially in the form previously agreed upon, dated the such Closing Date.
(f) On each Closing Date, there shall have been furnished to you the opinion of Xxxxx, Xxxxxx & XxXxxxxx, P.C., special regulatory counsel for the Company substantially in the form previously agreed upon, dated such Closing Date.
(g) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from MorgxxXxxxxx, Xxxxx & Xockxxx XXXBockius LLP, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(gh) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXXKPMG LLP, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(hi) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXNasdaq National Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Mgi Pharma Inc)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser ------------------------------------- hereunder are subject to the accuracy, as of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth contemplated in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein Prospectus, subsequent to the respective dates as of which information is given incorporated by reference in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stockstock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares to consultants, upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the such Closing Date, of SmithXxxxxx & Xxxxxxx LLP, Stratton, Wise, Hehex & Xrenxxx, xxunsel counsel for the Company.
(e) On the each Closing Date, there shall have been furnished to you the opinion of DechertSchwegman, Lundberg, Xxxxxxxx & Xxxxx, P.A., special patent counsel for the Company substantially in the form previously agreed upon, dated the such Closing Date.
(f) On each Closing Date, there shall have been furnished to you the opinion of Xxxxx, Xxxxxx & XxXxxxxx, P.C., special regulatory counsel for the Company substantially in the form previously agreed upon, dated such Closing Date.
(g) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from MorgxxXxxxxx, Xxxxx & Xockxxx XXXBockius LLP, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(gh) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXXKPMG LLP, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(hi) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Firm Shares for offering or sale has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares to consultants, upon the exercise of outstanding options or warrants, or pursuant to the Company's License Agreement with Helsinn Healthcare SA dated April 6, 2001), or any material change in the short-short- term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans)options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the Company.
(j) The Company shall have furnished to you and counsel for the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEXNasdaq National Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Mgi Pharma Inc)
Conditions of Purchaser’s Obligations. The obligations of the Purchaser hereunder to purchase the Shares under this Agreement are subject to the accuracy, as satisfaction of each of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) All the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct, in all material respects, on the Closing Date, with the same force and effect as if made on and as of the Closing Date; to the knowledge of the Company and the Operating Partnership, such representations and warranties were true and correct, in all Material respects, as of the date of this Agreement and on the Closing Date.
(b) The Prospectus Offering Memorandum (and any amendments or supplements thereto) shall have been filed with distributed to the Commission in accordance with Purchaser on or prior to the Rules and Regulations and Section 4(a) date of this Agreement. No Agreement or at such other date and time as to which the Purchaser may agree; and no stop order pursuant to applicable law suspending the effectiveness sale of the Registration Statement or of Shares in any part thereof jurisdiction shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, to the knowledge of the Company commenced or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement pending or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingthreatened.
(c) Except as set forth in Since the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusOffering Memorandum, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any material adverse change in the capital stock, or any material change in the short-term partners' equity or long-term debt of the Company, the Operating Partnership or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company Subsidiaries on a consolidated basis, except as described or contemplated in the Offering Memorandum, or any material adverse change change, or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business)change, in or affecting the general affairs, condition (financial or otherwise), business, key personnelprospects, propertymanagement, net worth properties, financial position, stockholders' equity, partners' equity or results of operations of the Company, thatthe Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which in your judgment, judgment makes it impractical impracticable or inadvisable to offer proceed with the public offering or deliver the Firm delivery of the Shares on the terms and in the manner contemplated in the Prospectus.Offering Memorandum; and other than as set forth in the Offering Memorandum, no proceedings shall be pending or, to the knowledge of the Company, after due inquiry, threatened against the Operating Partnership or the Company or any Property before or by any federal, state or other commission, board or administrative agency, where an unfavorable decision, ruling or finding could reasonably be expected to result in a Material Adverse Effect;
(d) You shall have received on and as of the Closing Date a certificate signed by the Chairman of the Board of Directors or President or Chief Executive Officer of the Company and the Chief Financial or Accounting Officer of the Company, in their capacities as of- ficers of the Company, on behalf of the Company for itself and as general partner of the Operating Partnership, satisfactory to you, to the effect set forth in subsections (a) through (c) of this Section;
(e) You shall have received on the Closing Date an opinion substantially in (satisfactory to you and counsel for the form previously agreed uponPurchaser), dated the Closing Date, of SmithXxxxxx Xxxxxx & Xxxxxxx, Stratton, Wise, Hehex & Xrenxxx, xxunsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXX, dated such Closing Date and addressed to you, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(h) On the Closing Date, there shall have been furnished to you, as the Purchaser, a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the CompanyOperating Partnership, to the effect that:
(i) The representations Company is duly qualified or registered as a foreign corporation to transact business and warranties is in good standing in each jurisdiction identified with an asterisk in Schedule I hereto. Each of the Company FIFC and FISC is duly qualified or registered as a foreign corporation to transact business and is in this Agreement are true and correct, good standing in all material respects, as if made at and as of such Closing Date, and the Company has complied each jurisdiction identified with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;an asterisk in Schedule I hereto.
(ii) No stop order or other order suspending the effectiveness The Operating Partnership and each of the Registration Statement or any amendment thereof or Financing Partnership and Securities, L.P. has been duly formed and is validly existing as a limited partnership in good standing under the qualification laws of its state of organization. The Operating Partnership and each of the Firm Shares for offering or sale Financing Partnership and Securities, L.P. has been issuedall requisite partnership power and authority to own, lease and operate its properties and other assets, to conduct the business in which it is engaged and proposes to engage, in each case, as described in the Offering Memorandum, and no proceeding for that purpose the Operating Partnership has been instituted orthe partnership power to enter into and perform its obligations under this Agreement. The Operating Partnership and each of the Financing Partnership and Securities, to the best of their knowledge, L.P. is contemplated by the Commission duly qualified or any state or regulatory body; andregistered as a foreign partnership and is in good standing in each jurisdiction identified with an asterisk in Schedule I hereto.
(iii) The signers To the knowledge of said such counsel (assuming due authorization, execution and delivery of each of the partnership agreements of the Operating Partnership, the Financing Partnership and Securities, L.P., by each of the parties thereto), all of the outstanding partnership interests of the Operating Partnership, the Financing Partnership and Securities, L.P. have been duly authorized, validly issued and fully paid and, except for Units not owned by the Company, are owned directly or indirectly by the Company or the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the Operating Partnership, the Financing Partnership, Securities, L.P., FIFC or FISC is in violation of or default under its charter, by-laws, certificate have carefully examined of limited partnership or partnership agreement, as the Registration Statement and the Prospectuscase may be, and none of such entities is in default in the performance or observance of any amendments thereof obligation, agreement, covenant or supplements thereto, and condition contained in any document (A) such documents contain all statements and information required to be included therein, as in effect on the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in such opinion) listed as an amended or supplemented prospectus which has not been so set forth, (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant exhibit to the Company's Stock Option PlansAnnual Report on Form 10-K, to which such entity is a party or by which such entity may be bound, or to which any of the property or assets of such entity or any Property is subject to or bound by (it being understood that (i) such counsel need express no opinion with respect to matters relating to any contract, indenture, mortgage, loan agreement, note, lease, joint venture or partnership agreement or other instrument or agreement relating to the acquisition, transfer, operation, maintenance, management or financing of any property or assets of such entity or any other Property and (ii) such counsel may assume compliance with the financial covenants contained in any such document), warrantsexcept in each case for violations or defaults which in the aggregate are not reasonably expected to have a Material Adverse Effect.
(v) Each of this Agreement and the Registration Rights Agreement was duly and validly authorized and executed by each of the Company and the Operating Partnership.
(vi) The execution and delivery of this Agreement and the Registration Rights Agreement, convertible securities the issuance and sale of the Shares and the performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the Registration Rights Agreement and the consummation of the transactions herein and therein contemplated will not require, to such counsel's knowledge, any consent, approval, authorization or other rights order of any court, regulatory body, administrative agency or other governmental body (except such as may be required under the state securities, Blue Sky or real estate syndication laws in connection with the purchase of the Shares by the Purchaser) and did not and do not conflict with or constitute a breach or violation of or default under: (1) any document (as in effect on the date of such opinion) listed as an exhibit to purchase the capital stockCompany's Annual Report on Form 10-K, as amended, to which any such entity is a party or by which it or any of them or any of their respective properties or other assets may be bound or subject and of which such counsel is aware (it being understood that (i) such counsel need express no opinion with respect to matters relating to any contract, indenture, mortgage, loan agreement, note, lease, joint venture or partnership agreement or other instrument or agreement relating to the acquisition, transfer, operation, maintenance, management or financing of any property or assets of such entity or any other Property and (ii) such counsel may assume compliance with the financial covenants contained in any such document); (2) the certificate of limited partnership or partnership agreement, as the case may be, of the Operating Partnership, the Financing Partnership, and Securities, L.P. or the articles of incorporation or bylaws, as the case may be, of the Company, FIFC or FISC; (3) any of its subsidiariesapplicable law, rule or any material adverse change administrative regulation, except in each case for conflicts, breaches, violations or any development involving a prospective material adverse change (whether or not arising defaults that in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as aggregate would not have a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, in the form provided to the Company by counsel to the Purchaser, from each officer and director of the CompanyMaterial Adverse Effect.
(jvii) The Company shall have furnished information in Exhibit A to you the Offering Memorandum under "Description of Common Stock," "Certain Federal Income Tax Considerations," "Risk Factors," "Restrictions on Transfers of Capital Stock" and "Federal Income Tax Considerations," to the extent that it constitutes statements of law, descriptions of statutes, rules or regulations, summaries of documents or legal conclusions, has been reviewed by such counsel for and is correct in all material respects and presents fairly the Purchaser such additional documents, certificates and evidence as you or they may have reasonably requestedinformation required to be disclosed therein.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Purchaser. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (First Industrial Realty Trust Inc)
Conditions of Purchaser’s Obligations. The obligations of Purchaser's obligation to purchase and pay for the Purchaser hereunder are Debenture is subject to the accuracysatisfaction or waiver, as prior to or at the Closing, of each of the date hereof and at the Closing Date (as if made at the Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Purchaser, shall be contemplated by the Commission.
(b) The Purchaser shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) Except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference therein , subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock, or any material change in the short-term or long-term debt of the Company, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock of the Company or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business), in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company, that, in your judgment, makes it impractical or inadvisable to offer or deliver the Firm Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received an opinion substantially in the form previously agreed upon, dated the Closing Date, of Smith, Stratton, Wise, Hehex & Xrenxxx, xxunsel for the Company.
(e) On the Closing Date, there shall have been furnished to you the opinion of Dechert, special patent counsel for the Company substantially in the form previously agreed upon, dated the Closing Date.
(f) On the Closing Date, there shall have been furnished to the Purchaser, such opinion or opinions from Morgxx, Xxxxx & Xockxxx XXX, counsel for the Purchaser, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Firm Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received a letter of Arthxx Xxxexxxx XXXthe opinion, dated as of such Closing Date and addressed to youthe Purchaser, confirming that they are independent public accountants within of Arter & Hadden, counsel for the meaning Company, in form axx xxbstxxxx xeasonably satisfactory to counsel for the Purchaser.
(b) The representations and warranties of the Act Company contained in this Agreement shall be true and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, correct on and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates hereof and on and as of which specified financial information is given the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the ProspectusMemorandum (exclusive of any amendment or supplement thereto after the date hereof), as of a date not more than five days prior subsequent to the date of such letter), the conclusions and findings of said firm with respect to the most recent financial information and other matters covered by its letter delivered to you concurrently with the 11 execution of this Agreement or as soon as practicable thereafter, and the effect of the letter so to be delivered on the Closing Date shall be to confirm the conclusions and findings set forth statements in such prior letter.
(h) On the Closing DateMemorandum, there shall have been furnished no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to youhave a Material Adverse Effect.
(c) The sale of the Debenture hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(d) Subsequent to the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), as none of the PurchaserCompany or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer Material Adverse Effect.
(e) The Purchaser shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct, in all material respects, as if made at correct on and as of such the date hereof and on and as of the Closing Date, and the Company has complied with performed all the covenants and agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such the Closing Date;
(ii) No stop order At the Closing Date, since the date hereof or other order suspending since the effectiveness date of the Registration Statement or most recent financial statements in the Memorandum (exclusive of any amendment thereof or supplement thereto after the qualification of date hereof), except as described in the Firm Shares for offering Memorandum no event or sale development has been issuedoccurred, and no proceeding for that purpose information has been instituted orbecome known, that, individually or in the aggregate, has or would be reasonably likely to the best of their knowledge, is contemplated by the Commission or any state or regulatory bodyhave a Material Adverse Effect; and
(iii) The signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto, and (A) such documents contain all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light sale of the circumstances under which they were made, not misleading, (B) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented prospectus which Debenture hereunder has not been so set forth, enjoined (Ctemporarily or permanently).
(f) subsequent to On the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement or as contemplated or required by any document contained or incorporated by reference thereinClosing Date, the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus, there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than options granted pursuant to the Company's Stock Option Plans), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any of its subsidiaries, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, net worth or results of operations of the Company and its subsidiaries, taken as a whole, and (D) except as stated in the Registration Statement and the Prospectus, there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole. 12
(i) The Purchaser shall have received duly executed lock up agreements, the Debenture in the form provided to of Exhibit C hereto and the Allonge in the form of Exhibit A hereto, in each case, executed by the Company by counsel to and such instrument shall be in full force and effect at all times after the PurchaserClosing Date. On or before the Closing Date, from each officer and director of the Company.
(j) The Company shall have furnished to you Purchaser and counsel for the Purchaser shall have received such additional further documents, certificates and evidence as you or they may have reasonably requested.
(k) All necessary filings shall have been made as required and all filing fees shall have been paid to effect the listing of the Firm Shares on the AMEX. All such opinions, certificates, letters and other documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will be in compliance comply with the provisions hereof only if they are reasonably satisfactory in form and substance all material respects to you the Purchaser and counsel for the Purchaser. The Company will shall furnish you with to the Purchaser such conformed copies of such documents, opinions, certificates, letters letters, schedules and other documents instruments in such quantities as you the Purchaser shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Sa Telecommunications Inc /De/)
