Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents. (f) The Placement Agents 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 Agents. (g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents. (l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 2 contracts
Samples: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 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 Agents, 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 Agents Representative shall have received an opinionopinion and negative assurance letter, each dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx Xxxxxxxx & Xxxx, PLLCXxxxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(fvi) The Placement Agents Representative shall have received an opinion, dated as of the Closing Date, of intellectual property K&L Gates LLP, as counsel to the CompanyPlacement Agents, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(gvii) The Placement Agents On the date hereof and on the Closing Date, the Representative 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 Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 and other matters covered by its letter delivered to the Placement AgentsAgents concurrently with the execution of this Agreement, which are derived from and the general accounting, financial or other records effect 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 letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in agreementsuch prior letter.
(iviii) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative to the effect that each signer has carefully examined the Registration Statement Statement, the Final Prospectus and the Disclosure Package, and that to each of such person’s knowledge:
(ia) (A1) 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 Final Prospectus nor the Pricing 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 (B2) no event has occurred as a result of which it is necessary to amend or supplement the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(iib) 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 respects for those representations and warranties qualified by materiality and in all material respectsrespects for those representations and warranties that are not qualified by materiality.
(iiic) 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.
(ivd) 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; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
(ve) Subsequent to the date of the most recent financial statements in the Final Prospectus, there has been no Material Adverse EffectChange.
(j) The Securities shall be qualified for sale, if required, in such states as the Placement Agents 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.
(kix) The Company shall have furnished or caused to be furnished to the Placement Agents Representative such certificates, in addition to those specifically mentioned herein, as the Placement Agents Representative 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 Final Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company as to the performance by the Company Company, of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(lx) The Representative shall have received the letters substantially in the form of Exhibit A attached hereto from each director, officer and stockholder of the Company named in Schedule 2 hereto.
(xi) The Shares and Warrant Shares shall be eligible have been approved for trading, when issued, quotation upon notice of issuance on the OTC Bulletin BoardThe Nasdaq Capital Market.
(mxii) 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 Representative makes it impracticable to proceed with the Offeringinitial public offering 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 2 contracts
Samples: Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 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 Agents, would reasonably be expected by management to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company and the Selling Stockholders 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 the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) The Placement Agents Representative shall have received an opinionopinion and negative assurance letter, each dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx Xxxxxxxx & Xxxx, PLLCXxxxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(fvi) The Placement Agents Representative shall have received an opinion, dated as of the Closing Date, of intellectual property K&L Gates LLP, as counsel to the CompanyPlacement Agents, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(gvii) The Placement Agents On the date hereof and on the Closing Date, the Representative 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 Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), Auditor addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 and other matters covered by its letter delivered to the Placement AgentsAgents concurrently with the execution of this Agreement, which are derived from and the general accounting, financial or other records effect 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 letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in agreementsuch prior letter.
(iviii) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative to the effect that each signer has carefully examined the Registration Statement Statement, the Final Prospectus and the Disclosure Package, and that to each of such person’s knowledge:
(ia) (A1) 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 Final Prospectus nor the Pricing 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 (B2) no event has occurred as a result of which it is necessary to amend or supplement the Final Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(iib) 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 respects for those representations and warranties qualified by materiality and in all material respectsrespects for those representations and warranties that are not qualified by materiality.
(iiic) 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.
(ivd) 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; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
(ve) Subsequent to the date of the most recent financial statements in the Final Prospectus, there has been no Material Adverse EffectChange.
(jix) The Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on At the Closing Date; provided , there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Selling Stockholders, in form and substance satisfactory to the Representative to the effect that (a) each of the representations and warranties of such Selling Stockholder contained in no event shall this Agreement were, when originally made, and are, at the Company time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality and (b) each of the covenants required herein to be obligated performed by such Selling Stockholder on or prior to qualify the date of such certificate has been duly, timely and fully performed and each condition herein required to do business in any jurisdiction where it is not now so qualified be complied with by such Selling Stockholder on or prior to take any action which would subject it to taxation or general service the delivery of process in any jurisdiction where it is not now so subjectsuch certificate has been duly, timely and fully complied with.
(kx) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Placement Agents Representative such certificates, in addition to those specifically mentioned herein, as the Placement Agents Representative 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 Final Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company or the Selling Stockholders as to the performance by the Company or the Selling Stockholders, as the case may be, of its their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(lxi) The Representative shall have received the letters substantially in the form of Exhibit A attached hereto from each director, officer and stockholder of the Company named in Schedule 3 hereto.
(xii) The Shares and Warrant Shares shall be eligible have been approved for trading, when issued, quotation upon notice of issuance on the OTC Bulletin BoardThe Nasdaq Capital Market.
(mxiii) 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 Representative makes it impracticable to proceed with the Offeringinitial public offering 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
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, and in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither and, that in the Prospectus nor case of the Pricing Disclosure Materials contains Prospectus, it will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading
(d) The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement Agents’ reasonable opinion is material, or omits to state a fact that in the Placement Agents’ opinion is material and (B) no event has occurred as a result of which it is required to be stated therein or is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(iie) Each of Except as contemplated in the representations and warranties Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company contained and its subsidiaries considered as one enterprise, whether or not arising in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsordinary course of business.
(iiif) Each of the covenants required herein to be performed Unless waived by the Company on or prior to Applicable Placement Agent, the date of such certificate has been dulyApplicable Placement Agent shall have received, timely and fully performed and each condition herein as required to be complied with by the Company delivered pursuant to Section 7 on or prior before the date on which delivery of such opinion is required pursuant to Section 7(v), the opinions, addressed to such Applicable Placement Agent, of (i) Eversheds Xxxxxxxxxx (US) LLP, corporate counsel for the Company, or other counsel satisfactory to the such Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D; and (ii), Xxxxx & Xxxxxxxxx LLP, counsel to the Placement Agents, or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate has been duly, timely and fully complied withis required pursuant to Section 7(v).
(ivh) No stop order suspending On each date on which the effectiveness Company is required to deliver a certificate pursuant to Section 7(v), counsel for the Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Registration Statement Securities as herein contemplated, or in order to evidence the accuracy of any part thereof has been issued and no proceedings for that purpose have been instituted of the representations or are contemplated by warranties, or the Commissionfulfillment of any of the conditions, contained in this Agreement.
(vi) Subsequent The Placement Securities shall either have been (i) approved for listing on Nasdaq Global Market, subject only to notice of issuance, or (ii) the date Company shall have filed an application for listing of the most recent financial statements in Placement Securities on Nasdaq Global Market at, or prior to, the Prospectus, there has been no Material Adverse Effectissuance of any Placement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Samples: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents, 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 Agents shall have received an opinion, dated as of the Closing Date, of WombleHxxxx Lovells US LLP, Carlyle, Xxxxxxxxx & Xxxx, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, in customary form.
(h) At the Closing DateClosing, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC shall have furnished to the Placement Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance reasonably satisfactory to the Placement Agents 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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 Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, or in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither and, that in the Prospectus nor case of the Pricing Disclosure Materials contains Prospectus, it will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading
(d) The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement Agents’ reasonable opinion is material, or omits to state a fact that in the Placement Agents’ opinion is material and (B) no event has occurred as a result of which it is required to be stated therein or is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(iie) Each of Except as contemplated in the representations and warranties Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company contained and its subsidiaries considered as one enterprise, whether or not arising in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsordinary course of business.
(iiif) Each of the covenants required herein to be performed Unless waived by the Company on or prior to Applicable Placement Agent, the date of such certificate has been dulyApplicable Placement Agent shall have received, timely and fully performed and each condition herein as required to be complied with by the Company delivered pursuant to Section 7 on or prior before the date on which delivery of such opinion is required pursuant to Section 7(v), the opinions, addressed to such Applicable Placement Agent, of (i) Eversheds Xxxxxxxxxx (US) LLP, corporate counsel for the Company, or other counsel satisfactory to the such Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D; and (ii), Xxxxx & Xxxxxxxxx LLP, counsel to the Placement Agents, or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate has been duly, timely and fully complied withis required pursuant to Section 7(v).
(ivh) No stop order suspending On each date on which the effectiveness Company is required to deliver a certificate pursuant to Section 7(v), counsel for the Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Registration Statement Securities as herein contemplated, or in order to evidence the accuracy of any part thereof has been issued and no proceedings for that purpose have been instituted of the representations or are contemplated by warranties, or the Commissionfulfillment of any of the conditions, contained in this Agreement.
(vi) Subsequent The Placement Securities shall either have been (i) approved for listing on Nasdaq Global Market, subject only to notice of issuance, or (ii) the date Company shall have filed an application for listing of the most recent financial statements in Placement Securities on Nasdaq Global Market at, or prior to, the Prospectus, there has been no Material Adverse Effectissuance of any Placement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Samples: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents Representative and the Placement Agents Representative did not object thereto in good faith on a timely basisfaith, and the Placement Agents Representative 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 Agents Representative 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 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 Agents Representative 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 Womble, Carlyle, Xxxxxxxxx & Xxxx, PLLCMxxxxxx X. Xxxxxxx, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsRepresentative.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, in customary form.
(h) At the Closing Date, each of Xxxxxx Xxxxxx Xxxxx LLP and Xxxxx, Xxxxxx & Xxxxxx, LLC GBH CPAs PC shall have furnished to the Placement Agents Representative a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agents Representative and in form and substance satisfactory to the Placement AgentsRepresentative, 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 AgentsRepresentative, or any increases in any items specified by the Placement AgentsRepresentative, 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 AgentsRepresentative, or any increases in any items specified by the Placement AgentsRepresentative, 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 AgentsRepresentative, 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 AgentsRepresentative, 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) Lonquist & Co. LLC shall have furnished to the Representative a letter, dated the Closing Date, addressed to the Representative and in form and substance satisfactory to the Representative.
(h) At the Closing Date, there shall be furnished to the Placement Agents Representative 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 Agents Representative 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 Agents 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 Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Samples: Placement Agency Agreement (Houston American Energy Corp)
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, and in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither and, that in the Prospectus nor case of the Pricing Disclosure Materials contains Prospectus, it will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading
(d) The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement Agents’ reasonable opinion is material, or omits to state a fact that in the Placement Agents’ opinion is material and (B) no event has occurred as a result of which it is required to be stated therein or is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(iie) Each of Except as contemplated in the representations and warranties Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company contained and its subsidiaries considered as one enterprise, whether or not arising in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsordinary course of business.
(iiif) Each of the covenants required herein to be performed Unless waived by the Company on or prior to Applicable Placement Agent, the date of such certificate has been dulyApplicable Placement Agent shall have received, timely and fully performed and each condition herein as required to be complied with by the Company delivered pursuant to Section 7 on or prior before the date on which delivery of such opinion is required pursuant to Section 7(v), the opinions, addressed to such Applicable Placement Agent, of (i) Eversheds Sxxxxxxxxx (US) LLP, corporate counsel for the Company, or other counsel satisfactory to the such Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D; and (ii), Bxxxx & Hxxxxxxxx LLP, counsel to the Placement Agents, or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or before the date on which delivery of such certificate has been duly, timely and fully complied withis required pursuant to Section 7(v).
(ivh) No stop order suspending On each date on which the effectiveness Company is required to deliver a certificate pursuant to Section 7(v), counsel for the Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Registration Statement Securities as herein contemplated, or in order to evidence the accuracy of any part thereof has been issued and no proceedings for that purpose have been instituted of the representations or are contemplated by warranties, or the Commissionfulfillment of any of the conditions, contained in this Agreement.
(vi) Subsequent The Placement Securities shall either have been (i) approved for listing on Nasdaq Global Market, subject only to notice of issuance, or (ii) the date Company shall have filed an application for listing of the most recent financial statements in Placement Securities on Nasdaq Global Market at, or prior to, the Prospectus, there has been no Material Adverse Effectissuance of any Placement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Samples: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement 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 Agents and the Placement Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agents 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 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 Agents shall have received an opinion, dated as of the Closing Date, of WombleMintz, CarlyleLevin, Xxxxxxxxx & XxxxCohn, PLLCFerris, as Glovsky and Popeo, P.C., counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agents shall have received an opinion, dated as of the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit C hereto.
(g) The Placement Agents 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 Agents, 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 Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement AgentsAgents containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At the Closing Date, confirming that (i) they are independent public accountants with respect 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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, 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 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 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.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(lk) The Shares Placement Agents shall have received executed “lock-up” agreements, each substantially in the form of Exhibit D hereto, from the executive officers and Warrant Shares directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreements shall be eligible for trading, when issued, in full force and effect on the OTC Bulletin BoardClosing 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 Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx Xxxxx Xxxxxx & Xxxx, PLLCXxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement AgentsAgents and their counsel.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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.
(ie) At the Closing Date, there shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents 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 in all material respects 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 withwith 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 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 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 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 Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(f) At the Closing Date, there shall be furnished to the Placement Agents a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agents, certifying that (i) attached thereto is a true, complete and correct copy of the certificate of incorporation and bylaws of the Company as in effect on the Closing Date and (ii) that attached thereto are true, complete and correct copies of resolutions duly adopted by the board of directors of the Company and continuing in effect, which authorize the execution, delivery and performance by the Company of this Agreement and the transactions contemplated hereby.
(g) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agents 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.
(kh) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 Agents.
(li) The Shares Company and Warrant Shares the Selling Stockholders shall be eligible for tradingprovide such further information, when issuedcertificates and documents, on as the OTC Bulletin BoardPlacement Agents may reasonably request.
(mj) Units representing an aggregate purchase price of at least $5 million The Company shall have been issued prepared 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 Agents. The obligations of the Placement Agents 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 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, any Issuer Free Writing Prospectus Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Lead Placement Agents Agent and the Lead Placement Agents Agent did not object thereto in good faith on a timely basis, and the Placement Agents 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 Lead Placement Agents 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 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 Agents shall have received an opinion, dated as of the Closing Date, of WombleXxxxxx, CarlyleXxxxx & Xxxxxxx LLP, Xxxxxxxxx & Xxxx, PLLC, as counsel to the Company, in form and substance reasonably satisfactory to the Lead Placement AgentsAgent, with respect to the matters set forth in Exhibit C hereto.
(f) The Placement Agents shall have received an opinionopinions, dated as of the Closing Date, of O’Melveny & Xxxxx LLP, Xxxxxxxx and Xxxxxxxx and Crew, LLP and XxXxxx & Xxxxxx, P.A., each of which is intellectual property counsel to the Company, in form and substance reasonably satisfactory to the Lead Placement AgentsAgent, with respect to the matters set forth in Exhibit D hereto.
(g) The Placement Agents 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 Agents, 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 Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Lead Placement AgentsAgent 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 Agents have 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 Agents 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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) 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 the 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 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 respects.as 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;
(ivA) No stop order suspending the effectiveness of the Registration Statement or of any part thereof has shall have been issued issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (B) 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), and (C) 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 instituted complied with to the satisfaction of the staff of the Commission or are contemplated by the Commission.such authorities; and
(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 shall be qualified for sale, if required, sale in such states as the Placement 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.
(kj) The Company shall have furnished or caused to be furnished to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Lead Placement Agents 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 Agents.
(lk) The Shares Lead Placement Agent shall have received an executed “lock-up” agreement, in the form of Exhibit E hereto, from Xxxxxx Xxxxxxxx relating to sales and Warrant Shares certain other dispositions of shares of Common Stock or certain other securities, and such lock-up agreement shall be eligible for trading, when issued, in full force and effect on the OTC Bulletin BoardClosing 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 Agents. The obligations of the Placement Agents 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 Permitted Free Writing Prospectus or the Prospectus shall have been filed unless a copy thereof was first submitted to the Placement Agents MCF and the Placement Agents MCF did not object thereto in good faith on a timely basisfaith, and the Placement Agents MCF shall have received certificates of the Company, dated as of the Initial 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 Agents MCF 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 MCF, 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 as of each 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 such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) The Placement Agents shall have received an opinion, dated as of the Initial Closing Date, of Womble, Carlyle, Xxxxxxxxxxxx Xxxx & Xxxxxxxxx & Xxxx, PLLC, as counsel LLP with respect to the Company, matters set forth in form and substance reasonably satisfactory to the Placement AgentsExhibit F hereto.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”the "COMFORT LETTER"), addressed to the Placement Agents and in form and substance satisfactory to the Placement AgentsMCF, confirming that 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 AgentsMCF, or any increases in any items specified by the Placement AgentsMCF, 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 AgentsMCF, or any increases in any items specified by the Placement AgentsMCF, 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 AgentsMCF, 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 AgentsMCF, 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 Initial Closing Date, there shall be furnished to the Placement 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, in form and substance satisfactory to the Placement Agents MCF 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 therein, in light of the circumstances under which they were made, 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 All the representations and warranties of the Company contained in this Agreement werethat are qualified as to materiality or Material Adverse Effect shall have been on the date hereof and shall be as of the Initial Closing Date, when originally made, as if made on and are, at as of the time such certificate is deliveredInitial Closing Date, true and correct complete in all respects, and all the representations and warranties of the Company contained in this Agreement that are not qualified as to materiality or Material Adverse Effect shall have been true and complete in all material respectsrespects on the date hereof and shall be true and complete in all material respects as of the Initial Closing Date, provided, however, that any representation or warranty of the Company in this Agreement made only as of some date other than the date hereof shall have been true and complete only as of such other 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 or other order suspending the effectiveness of the Registration Statement Statement, or any part thereof, or the qualification or registration of the Offered Securities under the securities or Blue Sky laws of any part thereof jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(v) 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.
(vi) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
(jh) The Offered Securities shall be qualified for sale, if required, sale in such states as the Placement Agents MCF may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on any Closing Date with respect to the Closing Date; sale of the Offered Securities in such state or states, 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 subjectfor herein.
(ki) The Company shall have furnished or caused to be furnished to the Placement Agents such a customary certificate of the Company's Secretary, as well as certificates, in addition to those specifically mentioned herein, as the Placement Agents MCF may have reasonably and timely requested as to the accuracy and completeness at the Initial Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Initial 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 Agents.
(lj) The Shares and Warrant Shares shall be eligible for trading, when issued, on the OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million MCF shall have been issued received the agreements referred to in Section 3(oo) and sold under (pp) hereof substantially in the Registration Statement in connection with the Offeringform of Exhibits D and E hereto.
Appears in 1 contract
Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents 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 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 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 and the Prospectus, if in the reasonable judgment of the Placement 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 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 Agents, 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 Agents shall have received an opinion, dated as of the Closing Date, Date of Womble, Carlyle, Xxxxxxxxx & Xxxx, PLLCXxxxxx Godward Kronish LLP, as counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit D hereto.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a the “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 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 Agents a letter, dated the date of its delivery (the “Bring-Down Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, (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 financial information and other matters covered by the Comfort Letter, there have been any changes Letter and (iii) confirming in all material respects 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 Agents, or any increases in any items specified by the Placement Agents, 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 conclusions and findings set forth 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 in all material respects 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 withwith 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) 4. Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse EffectChange.
5. 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 threatened by any securities or other governmental authority (including, without limitation, the Commission).
6. 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 are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation, the Commission).
(jh) At the Closing Date, there shall be furnished to the Placement Agents a certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Placement Agents.
(i) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement Agents 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 Agents Agent such certificates, in addition to those specifically mentioned herein, as the Placement Agents 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 AgentsAgent.
(lk) The Shares and Warrant Shares shall be eligible for trading, when issued, on the OTC Bulletin Board.
(m) Units representing an aggregate purchase price of at least $5 million Placement Agents shall have been issued received the letters referred to in Section 3(nn) and sold under (oo) hereof substantially in the Registration Statement in connection with the Offering.form of Exhibits X-0, X-0 and C.
Appears in 1 contract
Conditions of the Obligations of the Placement Agents. The obligations of the each Applicable Placement Agents hereunder are Agent with respect to a Placement as provided herein shall be subject to the continuing accuracy of the representations and warranties on the part of the Company set forth in Section 2 (the “Representations and Warranties”) hereof, or in the certificate of any officer of the Company delivered pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Securities contemplated to be issued by any Placement Notice.
(b) The Applicable Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(x) on or before the date on which such delivery of such letter is required pursuant to Section 7(x).
(c) None of the following events shall have occurred and be continuing:
(i) No stop order suspending the receipt by the Company or any of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of 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 limitationStatement, the Commission), response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus;
(ii) no the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the qualification or registration exemption from qualification of any of the Placement Securities under for sale in any jurisdiction or the securities initiation or Blue Sky laws threatening 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 purpose; or
(iv) after the date hereof no amendment occurrence of any event that makes any material statement made in the Registration Statement or supplement to the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus so that, in the case of 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 Agents and the Placement Agents did not object thereto in good faith on a timely basis, and the Placement Agents 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 Agents 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 Agents 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 Agents.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a “Comfort Letter”), addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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, in form and substance satisfactory to the Placement Agents 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 will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither and, that in the Prospectus nor case of the Pricing Disclosure Materials contains Prospectus, it will not contain any materially untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading
(d) The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement Agents’ reasonable opinion is material, or omits to state a fact that in the Placement Agents’ opinion is material and (B) no event has occurred as a result of which it is required to be stated therein or is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(iie) Each of Except as contemplated in the representations and warranties Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company contained and its subsidiaries considered as one enterprise, whether or not arising in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respectsordinary course of business.
(iiif) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been dulyThe Applicable Placement Agent shall have received, timely and fully performed and each condition herein as required to be complied with delivered pursuant to Section 7 on or before the date on which delivery of such opinion is required pursuant to Section 7(v), the opinions, addressed to such Applicable Placement Agent, of (i) Eversheds Xxxxxxxxxx (US) LLP, corporate counsel for the Company, or other counsel satisfactory to the such Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D; and (ii), unless waived by the Company Applicable Placement Agent, Xxxxx & Xxxxxxxxx LLP, counsel to the Placement Agents, or other counsel satisfactory to the Applicable Placement Agent, in form and substance reasonably satisfactory to the Applicable Placement Agent dated the date that the opinion is required to be delivered.
(g) The Applicable Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(v) on or prior to before the date on which delivery of such certificate has been duly, timely and fully complied withis required pursuant to Section 7(v).
(ivh) No stop order suspending On each date on which the effectiveness Company is required to deliver a certificate pursuant to Section 7(v), counsel for the Applicable Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Registration Statement Securities as herein contemplated, or in order to evidence the accuracy of any part thereof has been issued and no proceedings for that purpose have been instituted of the representations or are contemplated by warranties, or the Commissionfulfillment of any of the conditions, contained in this Agreement.
(vi) Subsequent The Placement Securities shall either have been (i) approved for listing on Nasdaq Global Market, subject only to notice of issuance, or (ii) the date Company shall have filed an application for listing of the most recent financial statements in Placement Securities on Nasdaq Global Market at, or prior to, the Prospectus, there has been no Material Adverse Effectissuance of any Placement Notice.
(j) The Trading in the Securities shall be qualified for sale, if required, in such states as the Placement Agents may reasonably and timely request, and each such qualification shall be in effect and not subject to any stop order or other proceeding have been suspended 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 subjectNasdaq Stock Market.
(k) The Company All filings with the Commission required by Rule 497 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have furnished or caused been made within the applicable time period prescribed for such filing by Rule 497 under the Securities Act. If any condition specified in this Section 8 shall not have been fulfilled when and as required to be furnished to fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such certificatestermination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date case of any statement termination of this Agreement, Section 2, Section 11, Section 13 and Section 19 hereof shall survive such termination and remain in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations full force 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 Agentseffect.
(l) The Shares and Warrant Shares shall be eligible for trading, when issued, on the 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
Samples: Equity Distribution Agreement (Newtek Business Services Corp.)
Conditions of the Obligations of the Placement Agents. The obligations of the Placement 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 and prior to the Closing 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 Agents and the Placement Agents did not reasonably object thereto in good faith on a timely basis, and the Placement Agents 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 Prospectusdate hereof, (i) there shall not have been a Material Adverse Effect, material adverse 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 reasonable judgment of the Placement 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 Prospectusdate hereof, 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 Agents shall have received an opinion, dated as of the Closing Date, of WombleO’Melveny & Xxxxx LLP, Carlyle, Xxxxxxxxx & Xxxx, PLLC, as outside counsel to the Company, in form and substance reasonably satisfactory to the Placement Agents, with respect to the matters set forth in Exhibit B hereto.
(f) The Placement Agents 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 Agents.
(g) The Placement Agents shall have received a negative assurance letter, dated as of the Closing Date, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, as counsel to the Placement Agents, 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 Agents a letter, dated the date of its delivery (each, a the “Comfort Original Letter”), addressed to the Placement Agents and in form and substance reasonably satisfactory to the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, or any increases in any items specified by the Placement Agents, 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 Agents, 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 Agents, 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 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 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 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 respectsrespects as if such representations and warranties were made on the Closing Date.
(iiiii) 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 withwith in all material respects.
(iviii) 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 described as being contemplated to the Company by the Commission.
(v) Subsequent to the date of the most recent financial statements in the Prospectus, there has been no Material Adverse Effect.
(jh) The Securities Shares shall be qualified for sale, if required, sale in such states as the Placement 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 Placement Agents shall have furnished or caused to be furnished received executed “lock-up” agreements, each substantially in the form of Exhibit C hereto, from each of the Company’s officers who are subject to the Placement Agents such certificates, in addition to those specifically mentioned herein, as the Placement Agents may have reasonably and timely requested as to the accuracy and completeness at the Closing Date reporting requirements of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date Section 16(a) of the representations Securities Exchange Act of 1934 and warranties directors of the Company as relating to the performance by the Company sales and certain other dispositions of its obligations hereundershares of Common Stock or certain other securities, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Placement Agents.
(l) The Shares and Warrant Shares such lock-up agreements shall be eligible for trading, when issued, full force and effect on the OTC Bulletin BoardClosing 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.
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