Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions: (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii). (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect. (d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects. (e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent. (f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent. (g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form. (h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. (i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge: (i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect. (ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with. (iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission. (v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect. (j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. (k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent. (l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities. (m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 2 contracts
Samples: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WombleXxxxxxxxxx & Xxxxx LLP, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At . On the Closing Date, there the Accountants shall be have furnished to the Placement Agent a “bring down” letter, dated the Closing Date, confirming the statements contained in the Comfort Letter and updating the procedures specified in the Comfort Letter to a specified date not more than five days prior to the Closing Date.
(g) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject quotation on the OTC Bulletin Board or traded on a national securities exchange upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit B hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with the OfferingClosing Date.
Appears in 1 contract
Samples: Placement Agent Agreement (Premier Power Renewable Energy, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(hg) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(ji) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex EquitiesThe Nasdaq Capital Market.
(ml) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(ia) (a)(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened threatened, to the Company’s knowledge, or contemplated by in writing by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether Change or not arising from transactions any development involving a prospective Material Adverse Effect in the ordinary course of business, in each case other than as set forth in properties, management, financial condition or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss results or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment operations of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering priceCompany.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ed) The Placement Agent shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx Axxx Gxxx Sxxxxxx Hxxxx & XxxxFxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, matters set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreementExhibit A hereto.
(ie) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in the form attached as Exhibit B-1 hereto, and substance satisfactory to a certificate of its Secretary in the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred form attached as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectExhibit B-2 hereto.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jf) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kg) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably prepared and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection filed with the OfferingCommission a Current Report on Form 8-K including as an exhibit thereto this Agreement.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(ia) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (ivd) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Final Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(bii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, (ia) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Disclosure Package and the Final Prospectus and (iib) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Disclosure Package and the Final Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Registration Statement Disclosure Package and the Final Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is proceeding, in the reasonable judgment of the Placement Agent, would reasonably be expected by management to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects at the Closing Datefor those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of letter from the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are it is an independent public accountants with respect to the Company accountant within the meaning of the Act and the Rules and Regulations; (ii) is in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects compliance with the applicable accounting requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Act Commission, and stating, as of the Rules and Regulations; date of such letter (iii) on or, with respect to matters involving changes or developments since the basis respective dates as of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail which specified financial information is given in the Comfort LetterDisclosure Package, a reading as of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not prior to the date hereof or more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (Asuch letter), there were any decreases in revenues or the total or per share amounts conclusions and findings of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, said firm with respect to certain amounts, percentages and the financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished matters covered by its letter delivered to the Placement Agent a certificateconcurrently with the execution of this Agreement, dated and the date of its delivery, signed by each effect of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required letter so to be stated therein or necessary delivered on such Closing Date shall be to confirm the conclusions and findings set forth in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectsuch prior letter.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jvi) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, trading on NYSE Amex Equitiesthe OTC Bulletin Board.
(mvii) Units representing an aggregate purchase price On or after the Applicable Time there shall not have occurred any of at least $5 million shall have been issued and sold under the Registration Statement following: (a) a suspension or material limitation in connection trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or the Nasdaq Stock Market LLC; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (d) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (c) or (d) in the judgment of the Placement Agent makes it impracticable to proceed with the Offeringoffering or the delivery of the Shares being delivered at the Closing Date on the terms and in the manner contemplated in the Final Prospectus.
Appears in 1 contract
Samples: Placement Agency Agreement (Blue Water Global Group, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received (i) an opinion, dated as of the Closing Date, of WombleXxxxx & Xxxxxxx LLP, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opiniona letter, dated as of the Closing Date, of intellectual property counsel to the Company, Xxxxx & Xxxxxxx LLP in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(hf) At the Closing DateClosing, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) 2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) 3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(j) The Securities shall be qualified for sale, if required, in such states as 5. No order suspending the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service effectiveness of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectusqualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, as or threatened, to the accuracy at Company's knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Closing Date Commission).
6. The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the representations and warranties staff of the Commission or such authorities.
(g) At the Closing, the Company as shall furnish to the performance Placement Agent a certificate, dated the date of its delivery, signed by the Company of its obligations hereunder, or as to the fulfillment Secretary of the conditions concurrent Company, in form and precedent substance reasonably satisfactory to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & XxxxDLA Pxxxx Xxxxxxx Gxxx Xxxx US LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C hereto.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property Dxxxxx Gxxxxxx PLLC, as special counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit D hereto.
(g) The Placement Agent shall have received a negative assurance letterOn the date hereof, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement AgentAgent and the Accountants, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) that as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed on behalf of the Company by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(ji) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; , as provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subjectSections 3(b) and 3(y) above.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
in Section 3(nn) and (moo) Units representing an aggregate purchase price hereof substantially in the form of at least $5 million shall have been issued Exhibits A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Samples: Placement Agency Agreement (Aastrom Biosciences Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are hereunder, including, but not limited to, to effectuate the Initial Closing and all Subsequent Closings, will be subject to the accuracy of the representations and warranties of the Company herein on the date hereof and each Closing Date (as though made on each Closing Date), to the timely performance by the Company of its obligations hereunder, and to the following conditions:additional conditions precedent: Newbridge Securities Corporation July 8, 2015
(ia) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (ivd) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Final Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)Agent.
(bii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, (ia) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Final Prospectus and (iib) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Final Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering priceas contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is proceeding, in the reasonable judgment of the Placement Agent, would reasonably be expected by management to have a Material Adverse EffectChange.
(div) From the date hereof through and including the Final Closing, there shall not have occurred any of the following: (I) trading in securities generally shall have been suspended on or by the New York Stock Exchange, Nasdaq or the NYSE MKT LLC, (II) trading in any of the securities of the Company shall have been suspended on any exchange, in the over-the-counter market or by the Commission, (III) a general moratorium on commercial banking activities shall have been declared by federal or New York state authorities or a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States, (IV) there shall have occurred any outbreak or material escalation of hostilities or acts of terrorism involving the United States or there shall have been a declaration by the United States or elsewhere of a national emergency or war, (V) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States, if the effect of any such event specified in clause (IV) or (V), in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with the Offering on the terms and in the manner contemplated by this Agreement, the Registration Statement and the Final Prospectus.
(v) At the Initial Closing, the Placement Agent shall have received a letter dated the date hereof (the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and its counsel, from the Auditor (a) confirming that it is an independent public accountant with respect to the Company within the meaning of the Act, and (b) stating, as of the date thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than three days prior to the date thereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to Placement Agent, delivered according to Statement of Auditing Standards No. 72 and Statement of Auditing Standards No. 100 (or successor bulletins), in connection with registered public offerings. Newbridge Securities Corporation July 8, 2015
(vi) At each Subsequent Closing, the Placement Agent shall have received from the Auditor a letter (the “Bring-Down Letter”), dated as of such particular Closing Date, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and its counsel, (a) confirming that it is an independent public accountant with respect to the Company within the meaning of the Act, (b) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than three days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the Comfort Letter, and (c) confirming in all material respects the conclusions and findings set forth in the Comfort Letter.
(vii) The Final Prospectus shall have been filed with the Commission in accordance with the Act and this Agreement.
(viii) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company.
(ix) Subsequent to the date of the latest audited financial statements included in the Registration Statement (a) the Company has not sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Final Prospectus and/or (b) 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 the conversion of convertible indebtedness), or material change in the short-term debt or long-term debt of the Company (other than upon conversion of convertible indebtedness) or any material adverse change, in or affecting the business, assets, general affairs, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth in the Final Prospectus, the effect of which, in any such case described in clause (a) or (b) of this subsection (ix), is, in the reasonable judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Final Prospectus.
(x) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at when made on and as of the Closing Date, as if made and on such datedate (except that (a) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (b) those representations and warranties which are, by their express terms, qualified by materiality or a Material Adverse Effect, shall be true and correct as so qualified), and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.. Newbridge Securities Corporation July 8, 2015
(exi) The Placement Agent Representative shall have received an from Xxxxxxxxx Xxxxxxx, LLP, counsel to the Company, such counsel’s written opinion, addressed to the Placement Agent and dated as of the particular Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentAgent and its counsel. Such counsel to the Company shall also have furnished to the Placement Agent a written statement (“Negative Assurances”). The Placement Agreement shall also receive a legal opinion from a law firm who is, and which opinion is in form and substance, reasonably acceptable to the Placment Agent and its legal counsel, addressed to the Placement Agent and dated as of the particular Closing Date regarding, among other related items, the Company’s ownership of its real property and/or leasing of real property, lack of liens and related clouds on title on the Company’s such property, ownership, and rights to use such property to effectuate its proposed business as described in each Preliminary Prospectus the Final Prospectus, such property having all all permits, consents, licenses and zoning compliance related items under all local law to effectuate the Company’s proposed business as provided in each Preliminary Prospectus and the Final Prospectus and such other related items that the Placement Agent and its counsel reasonably deem necessary.
(fxii) The Placement Agent shall have received an opinion, dated as of on the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received Date a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”)certificate, addressed to the Placement Agent and in form and substance satisfactory to the Placement Agentdated as of each Closing Date, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act chief executive or chief operating officer and the Rules and Regulations; (ii) in their opinion, the chief financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable officer or chief accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books officer of the Company since to the latest audited financial statements included in effect that:
a. each of the Prospectusrepresentations, inquiries of officials warranties and agreements of the Company responsible for financial contained in this Agreement were true and accounting matters correct when originally made and such other inquiries are true and procedures correct as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Companyparticular Closing Date, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared as if made on each such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
date (except that (i) At those representations and warranties that address matters only as of a particular date remain true and correct as of each such date and (ii) those representations and warranties which are, by their express terms, qualified by materiality or a Material Adverse Effect, shall be true and correct as so qualified); and the Company has, in all material respects, complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date;
b. no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Shares for offering or sale, there nor suspending or preventing the use of the Final Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceedings for that purpose or pursuant to Section 8A under the Act shall be furnished pending or to their knowledge, threatened by the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined Commission or any state or regulatory body;
c. the Registration Statement and that to each of such person’s knowledge:
(i) (A) As amendment thereto, and as of the date of such certificatethis Agreement and as of each Closing Date, (x) the Registration Statement does did not contain include any untrue statement of a material fact or and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, any Issuer Free Writing Prospectus as of its date and (y) neither as of each Closing Date, the Final Prospectus nor and each amendment or supplement thereto, as of the Pricing Disclosure Materials contains respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact or and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under in which they were made, not misleading and (B) misleading; and
d. no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect, and in the case of the Final Prospectus, in the light of the circumstances in which they were made.
(iixiii) Each The Shares shall have been approved for listing on the Nasdaq, subject only to official notice of issuance and adequate distribution. Newbridge Securities Corporation July 8, 2015
(xiv) The Escrow Agent shall have received subscriptions for Shares in at least the representations Minimum Amount and warranties of full payment in immediately avabilable funds for such Shares shall have been deposited into the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsEscrow Account.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kxv) The Company shall have furnished or caused to be furnished to the Placement Agent such certificatesfurther information, in addition to those specifically mentioned herein, certificates or documents as the Placement Agent may shall have reasonably requested.
(xvi) [reserved]
(xvii) The shares of Common Stock shall have been registered as a class under the Exchange Act as a result of the Commission declaring the Company’s Registration Statement on Form 8-A effective.
(xviii) The Company and timely requested its Common Stock, including all of the Shares, shall be DTC eligible.
(xix) The Placement Agent shall have received clearance from FINRA as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement ’s compensation in connection with the Offering.
(xx) The Placement Agent shall have completed all of its due diligence and the results thereof shall be satisfactory to the Placement Agent in its sole discretion.
(xxi) The Placement Agent shall have received all such other items, including, but not limited to, all documents, agreements, certificates, opinions, instruments, and consents, and its legal counsel reasonably requests. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or or, to the knowledge of the Company, threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)writing.
(b) Since the respective dates July 31, 2005, except as of which information is given set forth or contemplated in the Registration Statement and the Prospectus, (i) neither the Company nor any Significant Subsidiary has incurred any liabilities or obligations, direct or contingent, that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) there shall has not been any event or development in respect of the business or financial condition of the Company and the Significant Subsidiaries taken as a whole that, individually or in the aggregate, could reasonably be expected to have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The On the Closing date, the Company will furnish to the Placement Agent shall have received an opiniona letter from Xxxxxx, dated as of the Closing DateXxxx & Xxxxxxxx LLP, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, regarding the statements made by the Company in the Registration Statement and the Prospectus, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx Ernst & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx Young LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, Ernst & Young LLP shall have furnished to the Company within Placement Agent a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the President and Chief Executive Officer and the Chief Financial Officer of the Company, each in his or her capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the The representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsrespects on and as of the Closing Date, except that if a representation or warranty is made as of a specific date, such representation or warranty is true and correct in all material respects as of such date, and the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings proceeding for that purpose have has been instituted initiated or are contemplated threatened by the Commission.
(v) Subsequent . Except as disclosed to the date of the most recent financial statements in the ProspectusPlacement Agent, there has been no request of the Commission for inclusion of additional information in the Registration Statement, the Prospectus or any Preliminary Prospectus.
(iv) Since July 31, 2005, except as set forth or contemplated in the Prospectus, (A) neither the Company nor any of its Significant Subsidiaries has incurred any liabilities or obligations, direct or contingent, that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (B) there has not been any event or development in respect of the business or condition (financial or other) of the Company and its subsidiaries taken as a whole that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(jv) Since the date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement.
(h) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company Placement Agent shall have furnished or caused to be furnished to the Placement Agent such certificatesreceived executed “lock-up” agreements, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement each substantially in the Registration Statement or form of Exhibit B hereto, from the Prospectus, as to the accuracy at the Closing Date of the representations executive officers and warranties directors of the Company as relating to sales and certain other dispositions of Common Shares or certain other securities, and such lock-up agreements shall be full force and effect on the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement AgentClosing Date.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Samples: Placement Agency Agreement (Fleetwood Enterprises Inc/De/)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to place the Offered Securities and consummate the transactions contemplated hereby on the Closing are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), ; (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission), ; (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus and (ii) the Company shall not have sustained any material loss or material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx & XxxxXxxx Xxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C, respectively.
(f) The Placement Agent shall have received an opinionOn the date hereof, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and addressing such matters as are customary for the type of transactions contemplated by this Agreement and the Prospectus: (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Materials and the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that : (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinionstating, as of the financial statements and any supplementary date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information included is given in the Registration Statement Pricing Disclosure Materials and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries as of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Bring-Down Letter), nothing came to their attention that caused them to believe that: (A) as the conclusions and findings of a specified date not more than three days prior such firm with respect to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or financial information and other items specified matters covered by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (Biii) for confirming in all material respects the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year conclusions and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described findings set forth in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened by any securities or other governmental authority (including, without limitation, the Commission).
(vi) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(vii) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agent as to matters customary to the closing of the transactions of the type contemplated hereby.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that limitations set forth in no event shall the Company be obligated to qualify to do business proviso in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subjectSection 4(g).
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such customary closing certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement Statement, the Pricing Disclosure Materials or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price in Section 3 hereof substantially in the form of at least $5 million shall have been issued Exhibits A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to place the Offered Securities and consummate the transactions contemplated hereby on the Closing are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), ; (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by threatened, to the Company’s knowledge, in writing by, any securities or other governmental authority (including, without limitation, the Commission), ; (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iv) after the date hereof and prior to the Closing no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus and (ii) the Company shall not have sustained any material loss or material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the Pricing Disclosure Materials and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing DateDate of Weycer, of WombleKaplan, CarlylePulaski & Zxxxx, Xxxxxxxxx P.C., Cxxxxxxx Xxxxx & XxxxKlegerman PC, and Cxxxxxx Dxxx & Pxxxxxx Limited, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C-1, Exhibit C-2 and Exhibit C-3, respectively.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property Mxxxxxxx & Fxxxxxxx LLP, as counsel to the CompanyPlacement Agent, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letterOn the date hereof, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and addressing such matters as are customary for the type of transactions contemplated by this Agreement and the Prospectus: (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Materials and the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that : (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinionstating, as of the financial statements and any supplementary date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information included is given in the Registration Statement Pricing Disclosure Materials and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries as of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Bring-Down Letter), nothing came to their attention that caused them to believe that: (A) as the conclusions and findings of a specified date not more than three days prior such firm with respect to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or financial information and other items specified matters covered by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (Biii) for confirming in all material respects the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year conclusions and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described findings set forth in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (1. ( A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Securities, the Agent Warrants or the Agent Warrant Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof and prior to the Closing Date no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, (i) there shall not have been occurred no event, change, development, circumstance or occurrence that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement Statement, the General Disclosure Package and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement Statement, the General Disclosure Package and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Notes and the Warrants to the Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received (i) an opinion, dated as of the Closing Date, of WombleHolland & Knight LLP, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opiniona negative assurance letter, dated as of the Closing Date, of intellectual property counsel to the Company, Holland & Knight LLP in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(hf) At the Closing DateClosing, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the General Disclosure Package, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing General Disclosure Materials Package contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) 2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) 3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there no event, change, development, circumstance or occurrence has been no occurred that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in a Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as 5. No order suspending the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service effectiveness of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectusqualification or registration of the Securities, as the Agent Warrants or the Agent Warrant Shares under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the accuracy at Company's knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Closing Date Commission).
6. The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the representations and warranties staff of the Commission or such authorities.
(g) At the Closing, the Company as shall furnish to the performance Placement Agent a certificate, dated the date of its delivery, and signed by the Company of its obligations hereunder, or as to the fulfillment Secretary of the conditions concurrent Company, in form and precedent substance reasonably satisfactory to the obligations hereunder of the Placement Agent.
(lh) The Shares FINRA shall not have raised any unresolved objection with respect to the fairness and Warrant Shares shall have been approved for listing, subject reasonableness of the placement agency terms and arrangements relating to issuance, on NYSE Amex Equitiesthe issuance and sale of the Securities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Placement Agent not later than 5:00 p.m., California time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Placement Agent and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or or, to the Company’s knowledge, threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission)authority, (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(bc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the business, properties, financial condition or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(cd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation if determined adversely to the Company could materially and adversely affect the business, properties, properties, financial condition or proceeding is reasonably expected by management to have a Material Adverse Effectresults of operations of the Company.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date in all material respects at the Closing Daterespects, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agentwith.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property Xxxxxx Godward LLP, as special counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letterConcurrently with the execution and delivery of this Agreement, dated as of and at the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”)delivery, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) Each signer of such certificate has carefully examined the Registration Statement and the Prospectus and (A) As as of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants (not waived by the Placement Agent) required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the business, properties, financial condition or results of operations of the Company, except as set forth in the Prospectus.
(jvi) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending, or to such signer’s knowledge, threatened or contemplated by any securities or other governmental authority.
(i) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved included in a notification to be duly authorized for listing, subject to issuance, quotation on NYSE Amex Equitiesthe NNM.
(mk) Units representing an aggregate purchase price of at least $5 million The NASD shall have been issued confirmed that it has not raised any objection with respect to the fairness and sold under reasonableness of the Registration Statement in connection with the Offeringplacement agency terms and arrangements.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof) or the Prospectus (exclusive of any supplement thereto), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof) or the ProspectusProspectus (exclusive of any supplement thereto), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinionfrom each of (i) Xxxxx Xxxxxx & Xxxxxx, US counsel for the Company, (ii) X.X. Xxxxxx & Company, Cayman Islands counsel for the Company, and (iii) Xxxxxxxxxxx & Xxxxx, Bolivian counsel for the Company, such counsel's written opinion addressed to the Placement Agent and dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentAgent substantially as set forth in Exhibits C-1, C-2 and C-3 attached hereto, respectively.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort the "Original Letter”"), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters. At the Closing Date, the Accountants shall have furnished to the Company within Placement Agent a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s 's knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lj) The Shares and Warrant Shares shall have been approved for listing, subject to official notice of issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price the AMEX, and satisfactory evidence of at least $5 million such actions shall have been issued and sold under provided to the Registration Statement in connection with the OfferingPlacement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof) or the Prospectus (exclusive of any supplement thereto), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof) or the ProspectusProspectus (exclusive of any supplement thereto), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinionfrom each of (i) Xxxxx Xxxxxx & Xxxxxx, US counsel for the Company, and (ii) X.X. Xxxxxx & Company, Cayman Islands counsel for the Company, such counsel's written opinion addressed to the Placement Agent and dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentAgent substantially as set forth in Exhibits A-1 and A-2 attached hereto, respectively.
(f) The Placement Agent shall Accountants have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory previously furnished to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of January 27, 2004 (the Closing Date"Original Letter"), of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel addressed to the Placement Agent, containing statements and information of the type customarily included in customary form.
(h) accountants' "comfort letters" to underwriters. At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (eachdelivery, a “Comfort Letter”)which shall confirm, addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s 's knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lj) The Shares and Warrant Shares shall have been approved for listing, subject to official notice of issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price the AMEX, and satisfactory evidence of at least $5 million such actions shall have been issued and sold under provided to the Registration Statement in connection with the OfferingPlacement Agent.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The ---------------------------------------------------- obligations of the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Placement Agent not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Placement Agent and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(bc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effectmaterial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Securities to Investors at the public offering price.
(cd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any Selling Stockholder, the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effectmaterially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company.
(de) Each of the representations and warranties of the Company and each of the Selling Stockholders contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and each of the Selling Stockholders, and all conditions herein contained to be fulfilled or complied with by the Company and each of the Selling Stockholders at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing DateDate (or such other date as may be set forth in a representation or warranty), of intellectual property Xxxxxxx Xxxxxx, P.A. as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letteran opinion, dated as of the Closing DateDate (or such other date as may be set forth in a representation or warranty), of Xxxxxxxxx Xxxxx Xxxxxxx & XxxxxXxxxxx, P.A., as counsel to the Selling Stockholders, in form and substance reasonably satisfactory to the Placement Agent, in customary form.
(h) At Concurrently with the Closing Dateexecution and delivery of this Agreement, each or, if the Company elects to rely on Rule 430A, on the date of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxxthe Prospectus, Xxxxxx & Xxxxxx, LLC the Company's accountants (the "Accountants") shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “the "Comfort Letter”"), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Comfort Letter, that nothing has come to their attention during the period from the date of the Comfort Letter referred to in the prior sentence to a date (specified in the Bring-Down Letter) not more than five days prior to the Closing Date which would require any change in the Comfort Letter if it were required to be dated and delivered at the Closing Date.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that to each of such person's knowledge:
(1) Each signer of such certificate has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) the Prospectus and (A) As as of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii2) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii3) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv4) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v5) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(j) The Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares Placement Agent shall have been approved for listing, subject received the letters referred to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price in Section 3 hereof substantially in the form of at least $5 million shall have been issued Attachments A and sold under the Registration Statement in connection with the Offering.B.
Appears in 1 contract
Samples: Placement Agency Agreement (SFBC International Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities Units and the Warrant Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WombleProskauer Rose LLP, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Original Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Original Letter to a date not more than five days prior to the date of the Comfort Original Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Original Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Original Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Original Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. At the Closing Date, the Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jh) The Securities Units and the Warrant Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Samples: Placement Agency Agreement (Emisphere Technologies Inc)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WomblePaul, CarlyleHastings, Xxxxxxxxx Xxxxxxxx & XxxxXxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of On the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(ig) At the Closing DateClosing, there the Company shall be furnished furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject trading on the Nasdaq Global Market upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit C hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with Closing Date.
(n) The Placement Agent shall have received executed copies of the OfferingPlacement Agent Warrant.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus (or, in each case, any supplement or amendment thereto) or the qualification or registration of the Securities under the securities laws or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and Statement, the ProspectusProspectus or the General Disclosure Package (in each case exclusive of any amendment thereof subsequent to the Applicable Time), (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, Company (except for changes contemplated by the issuance of the Notes and the Warrants pursuant to the Securities Purchase Agreement) or any decreases in net current assets or net assets or other items specified by the Placement Agent, of its Subsidiaries or any increases in dividend or distribution of any items specified by the Placement Agentkind declared, in each case as compared with amounts shown in the latest balance sheet included in the Prospectusset aside for payment, except in each case for changes, increases paid or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed made by the Company on or prior to the date any class of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.capital stock or
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the ProspectusProspectus (exclusive of any supplement thereto), (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the Prospectusdate of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the ProspectusProspectus (including, in each case, any report incorporated by reference therein on or prior to the date of this Agreement), there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of WombleXxxxxx, CarlyleXxxxx & Xxxxxxx LLP, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of O’Melveny & Xxxxx LLP, intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent, with respect to the matters set forth in Exhibit C hereto.
(g) The Placement Agent shall have received a negative assurance letterConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement AgentAgent containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters, confirming provided that (i) they are independent public accountants with respect the Placement Agent has made to the Company within Accountants such representations as are required by the meaning of Accountants in order to permit the Act Accountants to prepare and so deliver the Rules and Regulations; (ii) in their opinionOriginal Letter. At the Closing Date, the financial statements and any supplementary financial information included in Accountants shall have furnished to the Registration Statement and examined by them comply as to form in all material respects with Placement Agent a letter, dated the applicable accounting requirements date of the Act and the Rules and Regulations; (iii) its delivery, which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ih) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) As of its effective date, the Registration Statement does did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither as of he date of such certificate, the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with, in all material respects.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements disclosed in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(ji) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date Date, of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date Date, of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Placement Agent shall have been approved for listingreceived executed “lock-up” agreements, subject each substantially in the form of Exhibit D hereto, from Xxxxxx Xxxxxxxx relating to issuancesales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be in full force and effect on NYSE Amex Equitiesthe Closing Date.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent Agents hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall have been issued, be in effect and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iviii) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent Agents and the Placement Agent Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii)faith.
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, Change whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and or the Prospectus Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and or the Prospectus, if in the judgment of the Placement Agent Agents any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Shares to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federalfederal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) The Placement Agent Agents shall have received an opinion, dated as of the Closing Date, of WombleXxxxxx & Dodge LLP, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentAgents, with respect to the matters set forth in Exhibit A hereto.
(f) The Placement Agent shall have received an opinionConcurrently with the execution and delivery of this Agreement, dated as or, if the Company elects to rely on Rule 430A, on the date of the Closing DateProspectus, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agent Agents and in form and substance reasonably satisfactory to the Placement AgentAgents, confirming that (i) they are independent public accountants with respect containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, the Accountants shall have furnished to the Company within Placement Agents a letter, dated the meaning date of the Act and the Rules and Regulations; (ii) in their opinionits delivery, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) which shall confirm, on the basis of procedures, not constituting an examination a review in accordance with generally accepted auditing standards, the procedures set forth in detail the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the Comfort Letter, prior sentence to a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be date (specified in the Comfort Letter to a date letter) not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been Closing Date which would require any changes change in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there Original Letter if it were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them required to be in agreementdated and delivered at the Closing Date.
(ig) At the Closing Date, there shall be furnished to the Placement Agent Agents a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, each in his capacity as such, in form and substance reasonably satisfactory to the Placement Agent Agents to the effect that each signer has carefully examined the Registration Statement and the Prospectus and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in all material respectsas if such representations and warranties were made on the Closing Date.
(iii) Each of the covenants and agreements required herein in this Agreement to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed Closing Date and each condition required herein required to be fulfilled or complied with by the Company on or prior to the delivery of such certificate Closing Date has been dulyduly performed, timely and fully fulfilled or complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effectmaterial adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agent Agents may reasonably and timely request, request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agent Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness completeness, at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy accuracy, at the Closing Date of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement AgentAgents.
(lj) The Shares and Warrant Shares Placement Agents shall have been approved for listingreceived executed “lock-up” agreements, subject each substantially in the form of Exhibit B hereto, from the executive officers and directors of the Company relating to issuancesales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be full force and effect on NYSE Amex Equitiesthe Closing Date.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are to offer and deliver the Units on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(ia) No The Registration Statement shall have become effective, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending have been instituted or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or, to the knowledge of the Company or threatened or you, shall be contemplated by any securities or other governmental authority (including, without limitationthe Commission. If the Company has elected to rely upon Rule 430A, the Commission), (iii) any request for additional information on concerning the part offering price of the staff of any securities or other governmental authority (including, without limitation, the Commission) Units and price-related information shall have been complied with transmitted to the satisfaction of Commission for filing pursuant to Rule 424(b) in the staff of manner and within the Commission or such authorities prescribed time period (without reliance on Rule 424(b)(8)) and (iv) after the date hereof no amendment or supplement Company will provide evidence satisfactory to the Registration Statement, any Issuer Free Writing Prospectus Placement Agent of such timely filing (or the Prospectus a post-effective amendment providing such information shall have been filed unless and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a copy thereof was first submitted Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Placement Agent Commission for filing and become effective within the Placement Agent did not object thereto in good faith on a timely basisprescribed time period and, and prior to the Placement Agent Closing Date, the Company shall have received certificates provided evidence of the Company, dated as of the Closing Date such filing and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iiieffectiveness in accordance with Rule 462(b).
(b) Since The Units shall have been qualified for sale under the respective dates blue sky laws of such states as shall have been agreed to by the Placement Agent and the Company.
(c) The legality and sufficiency of which information is given the authorization, issuance and sale or transfer and sale of the Units hereunder, the validity and form of the certificates representing the Units, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package, and the Prospectus (except financial statements) shall have been approved by counsel for the Placement Agent exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto contains an untrue statement of fact, which, in the Registration Statement opinion of counsel for the Placement Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the Prospectusstatements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, (i) there shall not have been occurred any change, or any development involving a Material Adverse Effectprospective change, in or affecting particularly the business or properties of the Company or its subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from firewhich, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development Agent, makes it impracticable impractical or inadvisable to consummate proceed with the sale and delivery of the Units to Investors at the public offering priceOffering as contemplated hereby.
(cf) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there There shall have been no litigation furnished to you, as Placement Agent, on the Closing Date, except as otherwise expressly provided below:
(i) An opinion of Brown, Winick, Graves, Gross, Bxxxxxxxxxx and Sxxxxxxxxx, P.L.C., counsel for the Company, addressed to the Placement Agent and dated the Closing Date, as set forth on Exhibit D.
(ii) Such opinion or opinions of Mxxxxxx Xxxx & Friedrich LLP, counsel for the Placement Agent, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Units, the Registration Statement, the Disclosure Package and other proceeding instituted against related matters as you may reasonably require, and the Company or any shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management enabling them to have a Material Adverse Effectpass upon such matters.
(diii) Each A certificate of the chief executive officer and the principal financial officer of the Company, dated the Closing Date, to the effect that:
(1) the representations and warranties of the Company contained herein shall be set forth in Section 2 of this Agreement are true and correct in all material respects at as of the date of this Agreement and as of the Closing Date, as if made and the Company has complied with all the agreements and satisfied all the conditions on such date, and all covenants and agreements herein contained its part to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company satisfied at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.Date;
(e2) The Placement Agent shall have received the Commission has not issued an opinion, dated as order preventing or suspending the use of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, any preliminary prospectus filed as a part of the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain or any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) amendment thereto; no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated by under the Commission.1933 Act; and
(v3) Subsequent subsequent to the date of the most recent financial statements included in the Registration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (A) none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been no Material Adverse Effect.
(j) any change that has had or would have a material adverse effect upon the Company and its subsidiaries taken as a whole or any material change in their short-term debt or long-term debt. The Securities delivery of the certificate provided for in this subparagraph shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, constitute a representation and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties warranty of the Company as to the performance facts required in the immediately foregoing clauses to be set forth in said certificate.
(iv) On the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent, from Cxxxxxxxxxxx & Associates, PLLP, an independent registered public accounting firm, dated the Closing Date, to the effect set forth in Exhibit E. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of the Placement Agent to proceed with the offering or purchase of the Units as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the Closing Date, verifying the truth and accuracy of such statistical or financial figures regarding the Company included in the Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (iv) above, such verification to include the provision of documentary evidence supporting any such statistical or financial figure.
(vi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to Mxxxxxx Xxxx & Friedrich LLP, counsel for the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the Placement Agent’s obligations hereunder to be satisfied prior to or at the Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of you, as Placement Agent, or the Company, except for the expenses to be paid or reimbursed by the Company of its obligations hereunder, or as pursuant to Sections 5 and 7 hereof and except to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agentextent provided in Section 9 hereof.
(l) The Shares and Warrant Shares shall have been approved for listing, subject to issuance, on NYSE Amex Equities.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Samples: Placement Agency Agreement (Amaizing Energy Holding Company, LLC)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basis, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units to Investors at the public offering price.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion, dated as of the Closing Date, of Womble, Carlyle, Xxxxxxxxx & Xxxx, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(f) The Placement Agent shall have received an opinion, dated as of the Closing Date, of intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
(g) The Placement Agent shall have received a negative assurance letter, dated as of the Closing Date, of [Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.]
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in clause (A), there were any decreases in revenues or the total or per share amounts of net loss or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At the Closing Date, there shall be furnished to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(k) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(l) The Shares and Warrant Shares shall have been approved be eligible for listingtrading, subject to issuancewhen issued, on NYSE Amex Equitiesthe OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million shall have been issued and sold under the Registration Statement in connection with the Offering.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder are subject to the following conditions:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before before, or threatened or contemplated by by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agent and the Placement Agent did not object thereto in good faith on a timely basisfaith, and the Placement Agent shall have received certificates of the Company, dated as of the Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse EffectChange, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Placement Agent any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units Offered Securities to Investors at the public offering priceas contemplated hereby.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding is reasonably expected by management to proceeding, in the reasonable judgment of the Placement Agent, could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agent shall have received an opinion(i) opinions, dated as of the Closing Date, of WombleXxx X. Xxxxxxx, CarlyleXx., the Company’s general counsel, and Xxxxxxxxx & XxxxXxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agent.
, and (fii) The Placement Agent shall have received an opiniona letter, dated as of the Closing Date, of intellectual property counsel to the Company, Xxxxxxxxx & Xxxxxx LLP in form and substance reasonably satisfactory to the Placement Agent.
(gf) The Placement Agent shall have received a negative assurance letterOn the date hereof, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agent, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC Accountants shall have furnished to the Placement Agent a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, confirming that (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than three five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause Clause (A), there were any decreases in revenues or the total or per share amounts of net loss income or other items specified by the Placement Agent, or any increases in any items specified by the Placement Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Placement Agent, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included or incorporated by reference in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Placement Agent, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear or are incorporated by reference in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(i) At . On the Closing Date, there the Accountants shall be have furnished to the Placement Agent a “bring down” letter, dated the Closing Date, confirming the statements contained in the Comfort Letter and the updating the procedures specified in the Comfort Letter to a specified date not more than five days prior to the Closing Date.
(g) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that each signer has carefully examined the Registration Statement Statement, the Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
(i) (A) As of the date of such certificate, (x) the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jv) No stop order or other order suspending the effectiveness of the Registration Statement, or any part thereof, or the use of the Prospectus or any Free Writing Prospectus, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by any securities or other governmental authority (including, without limitation, the Commission).
(vi) The Company has complied with any request for additional information from the staff of any securities or other governmental authority (including, without limitation, the Commission) to the satisfaction of the staff of the Commission or such authorities.
(h) At the Closing, the Company shall furnish to the Placement Agent a certificate, dated the date of its delivery, signed by the Secretary or an Assistant Secretary of the Company, in form and substance reasonably satisfactory to the Placement Agent.
(i) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agent may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agent may have reasonably and timely requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agent.
(lk) The Shares and Warrant Shares Offered Securities shall have been approved duly authorized for listing, subject listing on the Nasdaq Global Market upon official notice of issuance.
(l) FINRA shall not have raised any unresolved objection with respect to issuance, on NYSE Amex Equitiesthe fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Offered Securities.
(m) Units representing an aggregate purchase price of at least $5 million The Placement Agent shall have been issued received copies of the executed Lock-Up Agreements executed by each person listed on Exhibit B hereto, and sold under such Lock-Up Agreements shall be in full force and effect on the Registration Statement in connection with the OfferingClosing Date.
Appears in 1 contract
