Common use of Conditions of the Placement Agent’s Obligations Clause in Contracts

Conditions of the Placement Agent’s Obligations. The obligation of the Placement Agent to offer and sell the Common stock to Standby Purchasers as exclusive limited placement agent for the Company on a best efforts basis, as provided herein after the Registration Statement has become effective, shall be subject, in its discretion, to the continuing accuracy of the representations and warranties of the Company contained herein and in each certificate and document contemplated under this Agreement to be delivered to the Placement Agent, as of the date hereof and as of the Closing Date, to the performance by the Company of its obligations hereunder, and to the following conditions: (a) The Registration Statement shall have become effective not later than 6:00 P.M., Eastern Time, within five business days after execution of this Agreement or such other date and time as shall be consented to in writing by the Placement Agent. (b) At the Closing, you shall have received the favorable opinion of Barnes & Thornburg, counsel for the Company, dated the date of dxxxxxxy, axxxxxxxx to the Placement Agent, to the effect that: (i) The Company is a corporation duly organized and validly existing under the laws of the State of Indiana. The Company is duly qualified to do business and is in good standing in each jurisdiction identified by the Company to such counsel as a jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary; (ii) The authorized capital stock of the Company consists of (1) 30,000,000 shares of Class A common stock; (2) 20,000,000 shares of Class B common stock; and (3) 10,000,000 of Preferred Stock. Each outstanding share of Class A common stock and Class B common stock is validly authorized, validly issued, fully paid, and nonassessable. Except as disclosed in the Prospectus, to the knowledge of such counsel, there is no commitment, plan, or arrangement to issue, and no outstanding option, warrant, or other right calling for the issuance of, any share of capital stock of the Company or any security or other instrument which by its terms is convertible into, exercisable for, or exchangeable for capital stock of the Company, except options issued under the 1994 and 1999 Incentive Stock Plans or as may be properly described in the Prospectus or documents incorporated by reference therein; (iii) To the knowledge of counsel, the Company is not in violation or breach of, or in default with respect to, any material provision of its articles of incorporation or bylaws; (iv) The Company has all requisite corporate power and authority to execute, deliver, and perform this Agreement. All necessary corporate proceedings of the Company have been taken to authorize the execution, delivery, and performance of this Agreement by the Company. This Agreement has been duly authorized, executed, and delivered by the Company, is the legal, valid, and binding obligation of the Company, and (subject to applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting creditors' rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)) is enforceable as to the Company in accordance with its terms; (v) The common stock sold by the Company in this Offering will be validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid, and nonassessable and will not be issued in violation of any preemptive rights of shareholders; (vi) The capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Prospectus; (vii) To the knowledge of such counsel, the Company has no directly or indirectly held subsidiary other than the Subsidiaries; (viii) The certificates representing the shares to be sold in the Offering are in the form approved by the board of directors of the Company, comply with the bylaws and articles of incorporation of the Company and comply as to form and in all other respects with applicable legal requirements; (ix) To the knowledge of such counsel, there are: (A) no contracts or other documents which are required to be filed as exhibits to the Registration Statement other than those filed as exhibits thereto; (B) no legal or governmental proceedings pending or threatened against the Company, the outcome of which would have a material adverse effect on the Company and the Subsidiaries taken as a whole; and (C) no statutes or regulations applicable to the Company or certificates, permits, grants or other consents, approvals, orders, licenses, or authorizations from regulatory officials or bodies, which are required to be obtained or maintained by the Company or the Subsidiaries, which are of a character required to be disclosed in the Registration Statement and Prospectus and which have not been so disclosed; (x) The statements in the Prospectus (excluding statements incorporated by reference therein), insofar as they are descriptions of articles of incorporation, bylaws, stock option plans, contracts, or agreements or descriptions of laws, regulations, or regulatory requirements, or refer to compliance with law or to statements of law or legal conclusions, are correct in all material respects. (xi) To the knowledge of such counsel, the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated by this Agreement and the compliance with the terms and provisions of this Agreement by the Company will not give rise to a right to terminate or accelerate the due date of any payment due under, or violate or result in a breach of any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or require any consent under, or result in the execution or imposition of any lien, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of any lease, indenture, mortgage, note or other arrangement or instrument included as an exhibit to the Registration Statement or otherwise identified by the Company for such counsel, to which the Company is a party or by which it or its properties or business is or may be bound or affected, nor will such action result in any violation of the provisions of the articles of incorporation or bylaws of the Company or any statute, rule, or regulation applicable to the Company or any order identified by the Company for such counsel as material, the effect of which, in any such case, would be expected to be materially adverse to the Company; (xii) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body, domestic or foreign, is required to be obtained by the Company in connection with the execution and delivery of this Agreement or the sale of the common stock as contemplated by this Agreement, except those which have been obtained and except for the filing of consents of service of process as may be required under applicable blue sky laws; (xiii) The Registration Statement and the Prospectus and any amendments or supplements thereto (other than financial statements and other financial or statistical information as to which no opinion need be rendered) comply as to form with the requirements of the Act and the Regulations in all material respects; and (xiv) The Registration Statement shall have become effective under the Act. To the knowledge of such counsel, no Stop Order has been issued and no proceedings for that purpose have been instituted or threatened in writing. Such opinions may contain such qualifications, exceptions, and assumptions and may rely upon such matters or other opinions as may be agreed upon by the Placement Agents and the counsel rendering the opinion. In addition, such counsel shall state that they have participated in conferences with officers of the Company at which the contents of the Registration Statement and Prospectus and related matters were discussed and although such counsel did not independently verify the accuracy or completeness of the statements made in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of such counsel that would lead them to believe that the Registration or Prospectus, as amended or supplemented, if amended or supplemented, contains any untrue statement of a material fact or omits a material fact required to be stated therein necessary to make the statements therein not misleading; except that such statement may exclude financial statements, financial data, and statistical information included in the Registration Statement and Prospectus. (c) At the Closing Date, you shall have received a certificate of the Chief Executive Officer and of the Chief Financial Officer of the Company, dated the Closing Date, to the effect that as of the Closing Date, the representations and warranties of the Company contained herein were and are accurate, and that as of the Closing Date the obligations to be performed by the Company hereunder on or prior thereto have been fully performed. (d) All proceedings taken in connection with the issuance, sale, transfer and delivery of the common stock shall be satisfactory in form and substance in the reasonable judgment of the Placement Agent. (e) The NASD, upon review of the terms of the public offering of the common stock, shall not have objected to the Placement Agent's participation in such offering. (f) Prior to the Closing Date, there shall have been no material adverse change in the condition or prospects, financial or otherwise, of the Company and there shall not have been any material transaction, not in the ordinary course of business, entered into by the Company except as set forth in the Prospectus. (g) On the Effective Date and on the Closing Date, you shall have received a comfort letter from the Company's accountants in a form reasonably acceptable to you, dated as of the Effective Date and as of the Closing Date, respectively. Any certificate or other document signed by any officer of the Company and delivered to the Placement Agent or its counsel shall be deemed a representation and warranty by the Company hereunder to the Placement Agent as to the statements made therein. If any condition to the Placement Agents' obligations hereunder to be fulfilled prior to or at the Closing Date is not so fulfilled, the Placement Agent may terminate this Agreement or, if the Placement Agent so elects, in writing waive any such conditions which have not been fulfilled or extend the time for their fulfillment.