Conditions to Obligations of the Agent. The obligations of the Agent under this Agreement are, at the option of the Agent, subject to the satisfaction at or prior to the Initial Closing and through each Subsequent Closing, of each of the following conditions: 9.1 All representations and warranties and other statements of the Company herein are, as applicable, at and as of the commencement of the Offering or as of the applicable Closing Date, true and correct in all material respects, and the Company shall have performed in all material respects all its obligations hereunder to be performed on or before such dates. 9.2 The Registration Statement shall have been declared effective by the SEC and no stop order suspending the use of the Prospectus shall have been issued under any applicable law or proceedings thereof initiated or threatened by any regulatory authority, and no order or other action suspending the consummation of the transactions described in the Prospectus shall have been issued or proceeding therefor initiated or threatened by the SEC or any other regulatory authority. 9.3 At the Initial Closing Date the Agent shall have received: 9.3.1 The opinion addressed to the Agent as of the Initial Closing Date of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance satisfactory to the Agent’s counsel, substantially to the effect that: 9.3.1.1 The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Nevada. 9.3.1.2 The Company has the corporate power and authority to conduct its business and to own, lease and operate its properties as described in the Prospectus and as otherwise contemplated. 9.3.1.3 All Shares offered pursuant to the Offering have been duly and validly authorized for issuance, and when issued, sold and delivered by the Company pursuant to the terms of the Offering against payment of the consideration set forth in the Prospectus, all such Shares will be duly and validly issued and fully paid and nonassessable. 9.3.1.4 This Agreement has been duly authorized, executed and delivered by the Company and is the legal, valid and binding agreement of the Company enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that rights to indemnity thereunder may be limited under applicable laws. 9.3.1.5 The Registration Statement has been declared effective by the SEC and no stop order suspending the use of the Prospectus has been issued or, to the best of such counsel’s knowledge after reasonable inquiry, proceedings therefor initiated or threatened by any regulatory authority respecting the issuance of the Shares. 9.3.1.6 No further approval, registration, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares (except for approvals of state securities agencies, if any, as to which such counsel need not express any opinion) and the consummation of the transactions described in the Prospectus. 9.3.1.7 The information in the Prospectus under the captions: “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock” to the extent such information purports to summarize provisions of law or summarizes legal conclusions, are accurate summaries in all material respects. 9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, and the forms of certificates to be used to evidence the Shares are in due and proper form. 9.3.1.9 To the best of such counsel’s knowledge after reasonable inquiry, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Company required to be described or referred to in the Registration Statement or to be included as exhibits thereto other than those described or referred to therein or included as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. In rendering the foregoing opinions, counsel may rely, as to factual matters, on certificates of officers of the Company and on certificates of appropriate public officials, and, as to certain legal matters, may rely on the opinions of other legal counsel. In addition, such counsel’s opinion may be limited to laws of the United States of America and the State of Nevada. The opinion letter shall also contain a paragraph substantially to the effect that in the course of the preparation of the Registration Statement and the Prospectus, such counsel participated in conferences with officers and representatives of the Company, and with the Company’s independent public accountants, at which conferences the content of the Registration Statement and the Prospectus were discussed and at which conferences such counsel made inquiries of such officers, representatives and accountants, and, on the basis of the foregoing, nothing has come to such counsel’s attention that would lead such counsel to believe that either the Registration Statement or any amendment thereto, as of the date the Registration Statement or such amendment is or was declared effective, and as of the Initial Closing Date, or the Prospectus as of the date thereof and as of the Initial Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel does not express any belief with respect to the financial statements, and the notes and schedules related thereto and other financial information or statistical data included in the Registration Statement, any amendment thereto, or the Prospectus), or otherwise failed or fails to conform to the requirements of the Securities Act. Without limiting the generality of the foregoing, such counsel assumes no responsibility for the accuracy, completeness or fairness of any statements contained in the Registration Statement or Prospectus, other than statements insofar as they relate to legal matters under the captions “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock.” 9.3.2 At each Closing Date, the Agent shall receive a joint certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of such Closing Date, to the effect that, except to the extent set forth in any amendment to the Prospectus (i) since the respective dates as of when information was given in the Prospectus, there has been no change in the financial condition or in the earnings or business of the Company which has caused, or would be reasonably expected to cause, a Material Adverse Effect, whether or not arising in the ordinary course of business, (ii) the representations and warranties in Section 6 are true and correct with the same force and effect as though expressly made at and as of the Initial Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions relating to the Offering and this Agreement on its part to be performed or satisfied at or prior to the applicable Closing Date, (iv) no stop order suspending the use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened and (v) no order suspending the Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened. 9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall receive the written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, dated as of such Closing Date, to the effect set forth in Section 9.3.1; provided, however, that in lieu of such opinions, such counsel may furnish the Agent with a letter to the effect that the Agent may rely on the opinion referred to in Section 9.3.1 to the same extent as if it were dated such Closing Date. 9.3.4 At each Closing Date, the Agent’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, this Agreement and the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Agent and the Agent’s counsel. 9.3.5 The Company shall not have sustained, since the date of the Latest Financial Statements included in the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and since the respective dates as of which information is given in the Prospectus, there shall not have been any change or any development involving a prospective change in, or affecting the general affairs, business prospects, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. 9.3.6 There shall not exist as of the relevant date any of the following: (i) a suspension or material limitation in trading in securities generally on the New York or American Stock Exchanges or the Nasdaq National Market; or (ii) a general moratorium on commercial bank activities or a general moratorium on the withdrawal of deposits from federal stock savings banks insured by the FDIC. 9.3.7 A memorandum shall have been prepared by counsel to the Agent, and delivered to the Agent and the Company, in form and substance satisfactory to the Agent, setting forth the filings made with the state securities agencies of California, Florida, Illinois, Oregon, New York, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland and any other states agreed to by the parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Offering.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent under this Agreement are, at the option of the Agent, subject to the satisfaction at or prior to the Initial Closing and through each Subsequent Closing, of each of the following conditions:
9.1 All representations and warranties and other statements of the Company herein are, as applicable, at and as of the commencement of the Offering or as of the applicable Closing Date, true and correct in all material respects, and the Company shall have performed in all material respects all its obligations hereunder to be performed on or before such dates.
9.2 The Registration Statement shall have been declared effective by the SEC and no No stop order or similar prohibition suspending the use of the Prospectus Subscription Documents shall have been issued under any applicable law or proceedings thereof initiated or threatened by any regulatory authority, and no order or other action suspending the consummation of the transactions described in the Prospectus Subscription Documents shall have been issued or proceeding therefor initiated or threatened by the SEC or any other regulatory authority.
9.3 At the Initial Closing Date the Agent shall have received:
9.3.1 The opinion addressed to the Agent as of the Initial Closing Date of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance satisfactory to the Agent’s counsel, substantially to the effect that:
9.3.1.1 The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Nevada.
9.3.1.2 The Company has the corporate power and authority to conduct its business and to own, lease and operate its properties as described in the Prospectus Subscription Documents and as otherwise contemplated.
9.3.1.3 All Shares offered shares of Common Stock issuable upon conversion of the Notes pursuant to the Offering terms thereof have been duly and validly authorized for issuance, and when issued, sold issued and delivered by the Company pursuant to the terms of the Offering against payment of the consideration set forth in the Prospectus, all such Shares Notes upon conversion will be duly and validly issued and fully paid and nonassessable.
9.3.1.4 This Agreement has been duly authorized, executed and delivered by the Company and is the legal, valid and binding agreement of the Company enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that rights to indemnity thereunder may be limited under applicable laws.
9.3.1.5 The Registration Statement has been declared effective by the SEC and no No stop order or other prohibition suspending the use of the Prospectus Subscription Documents has been issued or, to the best of such counsel’s knowledge after reasonable inquiry, proceedings therefor initiated or threatened by any regulatory authority respecting the issuance of the SharesNotes.
9.3.1.6 No further approval, registration, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares Notes (except for approvals of state securities agencies, if any, as to which such counsel need not express any opinion) and the consummation of the transactions described in the Prospectus.
9.3.1.7 The information in the Prospectus under the captions: “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock” to the extent such information purports to summarize provisions of law or summarizes legal conclusions, are accurate summaries in all material respects.
9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, and the forms of certificates to be used to evidence the Shares are in due and proper form.
9.3.1.9 To the best of such counsel’s knowledge after reasonable inquiry, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Company required to be described or referred to in the Registration Statement or to be included as exhibits thereto other than those described or referred to therein or included as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respectsSubscription Documents. In rendering the foregoing opinions, counsel may rely, as to factual matters, on certificates of officers of the Company and on certificates of appropriate public officials, and, as to certain legal matters, may rely on the opinions of other legal counsel. In addition, such counsel’s opinion may be limited to laws of the United States of America and the State of Nevada. The opinion letter shall also contain a paragraph substantially to the effect that in the course of the preparation of the Registration Statement Subscription Documents and the ProspectusSubscription Documents, such counsel participated in conferences with officers and representatives of the Company, and with the Company’s independent public accountants, at which conferences the content of the Registration Statement Subscription Documents and the Prospectus Subscription Documents were discussed and at which conferences such counsel made inquiries of such officers, representatives and accountants, and, on the basis of the foregoing, nothing has come to such counsel’s attention that would lead such counsel to believe that either the Registration Statement Subscription Documents or any amendment thereto, as of the date the Registration Statement Subscription Documents or such amendment is or was declared effective, and as of the Initial Closing Date, or the Prospectus Subscription Documents as of the date thereof and as of the Initial Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel does not express any belief with respect to the financial statements, and the notes and schedules related thereto and other financial information or statistical data included in the Registration StatementSubscription Documents, any amendment thereto, or the ProspectusSubscription Documents), or otherwise failed or fails to conform to the requirements of the Securities Act. Without limiting the generality of the foregoing, such counsel assumes no responsibility for the accuracy, completeness or fairness of any statements contained in the Registration Statement Subscription Documents or ProspectusSubscription Documents, other than statements insofar as they relate to legal matters under the captions “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital StockBusiness.”
9.3.2 At each Closing Date, the Agent shall receive a joint certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of such Closing Date, to the effect that, except to the extent set forth in any amendment to the Prospectus Subscription Documents (i) since the respective dates as of when information was given in the ProspectusSubscription Documents, there has been no change in the financial condition or in the earnings or business of the Company which has caused, or would be reasonably expected to cause, a Material Adverse Effect, whether or not arising in the ordinary course of business, (ii) the representations and warranties in Section 6 are true and correct with the same force and effect as though expressly made at and as of the Initial Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions relating to the Offering and this Agreement on its part to be performed or satisfied at or prior to the applicable Closing Date, (iv) no stop order suspending the use of the Prospectus Subscription Documents has been issued and no proceedings for that purpose have been initiated or threatened and (v) no order suspending the Offering or the authorization for final use of the Prospectus Subscription Documents has been issued and no proceedings for that purpose have been initiated or threatened.
9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall receive the written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, dated as of such Closing Date, to the effect set forth in Section 9.3.1; provided, however, that in lieu of such opinions, such counsel may furnish the Agent with a letter to the effect that the Agent may rely on the opinion referred to in Section 9.3.1 to the same extent as if it were dated such Closing Date.
9.3.4 At each Closing Date, the Agent’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares Notes as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, this Agreement and the sale of the Shares Notes as herein contemplated shall be reasonably satisfactory in form and substance to the Agent and the Agent’s counsel.
9.3.5 The Company shall not have sustained, since the date of the Latest Financial Statements included in the ProspectusSubscription Documents, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the ProspectusSubscription Documents, and since the respective dates as of which information is given in the ProspectusSubscription Documents, there shall not have been any change or any development involving a prospective change in, or affecting the general affairs, business prospects, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth or contemplated in the ProspectusSubscription Documents, the effect of which, in any such case described above, is in the Agent’s reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares Notes on the terms and in the manner contemplated in the ProspectusSubscription Documents.
9.3.6 There shall not exist as of the relevant date any of the following: (i) a suspension or material limitation in trading in securities generally on the New York or American Stock Exchanges or the Nasdaq National Market; or (ii) a general moratorium on commercial bank activities or a general moratorium on the withdrawal of deposits from federal stock savings banks insured by the FDIC.
9.3.7 A memorandum shall have been prepared by counsel to the Agent, and delivered to the Agent and the Company, in form and substance satisfactory to the Agent, setting forth the filings made with the state securities agencies of California, Florida, Illinois, Oregon, New York, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland and any other states agreed to by the parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Offering.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent under this Agreement are, at the option of the Agent, subject to the satisfaction at or prior to the Initial Closing and through each Subsequent Closing, of each of the following conditions:
9.1 All representations and warranties and other statements of the Company herein are, as applicable, at and as of the commencement of the Offering or as of the applicable Closing Date, true and correct in all material respects, and the Company shall have performed in all material respects all its obligations hereunder to be performed on or before such dates.
9.2 The Registration Statement shall have been declared effective by the SEC and no stop order suspending the use of the Prospectus shall have been issued under any applicable law or proceedings thereof initiated or threatened by any regulatory authority, and no order or other action suspending the consummation of the transactions described in the Prospectus shall have been issued or proceeding therefor initiated or threatened by the SEC or any other regulatory authority.
9.3 At the Initial Closing Date the Agent shall have received:
9.3.1 The opinion addressed to the Agent as of the Initial Closing Date of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance satisfactory to the Agent’s counsel, substantially to the effect that:
9.3.1.1 The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Nevada.
9.3.1.2 The Company has the corporate power and authority to conduct its business and to own, lease and operate its properties as described in the Prospectus and as otherwise contemplated.
9.3.1.3 All Shares offered pursuant to the Offering have been duly and validly authorized for issuance, and when issued, sold and delivered by the Company pursuant to the terms of the Offering against payment of the consideration set forth in the Prospectus, all such Shares will be duly and validly issued and fully paid and nonassessable.
9.3.1.4 This Agreement has been duly authorized, executed and delivered by the Company and is the legal, valid and binding agreement of the Company enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that rights to indemnity thereunder may be limited under applicable laws.
9.3.1.5 The Registration Statement has been declared effective by the SEC and no stop order suspending the use of the Prospectus has been issued or, to the best of such counsel’s knowledge after reasonable inquiry, proceedings therefor initiated or threatened by any regulatory authority respecting the issuance of the Shares.
9.3.1.6 No further approval, registration, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares (except for approvals of state securities agencies, if any, as to which such counsel need not express any opinion) and the consummation of the transactions described in the Prospectus.
9.3.1.7 The information in the Prospectus under the captions: “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock” to the extent such information purports to summarize provisions of law or summarizes legal conclusions, are accurate summaries in all material respects.
9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, and the forms of certificates to be used to evidence the Shares are in due and proper form.
9.3.1.9 To the best of such counsel’s knowledge after reasonable inquiry, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Company required to be described or referred to in the Registration Statement or to be included as exhibits thereto other than those described or referred to therein or included as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. In rendering the foregoing opinions, counsel may rely, as to factual matters, on certificates of officers of the Company and on certificates of appropriate public officials, and, as to certain legal matters, may rely on the opinions of other legal counsel. In addition, such counsel’s opinion may be limited to laws of the United States of America and the State of Nevada. The opinion letter shall also contain a paragraph substantially to the effect that in the course of the preparation of the Registration Statement and the Prospectus, such counsel participated in conferences with officers and representatives of the Company, and with the Company’s independent public accountants, at which conferences the content of the Registration Statement and the Prospectus were discussed and at which conferences such counsel made inquiries of such officers, representatives and accountants, and, on the basis of the foregoing, nothing has come to such counsel’s attention that would lead such counsel to believe that either the Registration Statement or any amendment thereto, as of the date the Registration Statement or such amendment is or was declared effective, and as of the Initial Closing Date, or the Prospectus as of the date thereof and as of the Initial Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel does not express any belief with respect to the financial statements, and the notes and schedules related thereto and other financial information or statistical data included in the Registration Statement, any amendment thereto, or the Prospectus), or otherwise failed or fails to conform to the requirements of the Securities Act. Without limiting the generality of the foregoing, such counsel assumes no responsibility for the accuracy, completeness or fairness of any statements contained in the Registration Statement or Prospectus, other than statements insofar as they relate to legal matters under the captions “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock.”
9.3.2 At each Closing Date, the Agent shall receive a joint certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of such Closing Date, to the effect that, except to the extent set forth in any amendment to the Prospectus (i) since the respective dates as of when information was given in the Prospectus, there has been no change in the financial condition or in the earnings or business of the Company which has caused, or would be reasonably expected to cause, a Material Adverse Effect, whether or not arising in the ordinary course of business, (ii) the representations and warranties in Section 6 are true and correct with the same force and effect as though expressly made at and as of the Initial Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions relating to the Offering and this Agreement on its part to be performed or satisfied at or prior to the applicable Closing Date, (iv) no stop order suspending the use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened and (v) no order suspending the Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened.
9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall receive the written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, dated as of such Closing Date, to the effect set forth in Section 9.3.1; provided, however, that in lieu of such opinions, such counsel may furnish the Agent with a letter to the effect that the Agent may rely on the opinion referred to in Section 9.3.1 to the same extent as if it were dated such Closing Date.
9.3.4 At each Closing Date, the Agent’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, this Agreement and the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Agent and the Agent’s counsel.
9.3.5 The Company shall not have sustained, since the date of the Latest Financial Statements included in the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and since the respective dates as of which information is given in the Prospectus, there shall not have been any change or any development involving a prospective change in, or affecting the general affairs, business prospects, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
9.3.6 There shall not exist as of the relevant date any of the following: (i) a suspension or material limitation in trading in securities generally on the New York or American Stock Exchanges or the Nasdaq National Market; or (ii) a general moratorium on commercial bank activities or a general moratorium on the withdrawal of deposits from federal stock savings banks insured by the FDIC.
9.3.7 A memorandum shall have been prepared by counsel to the Agent, and delivered to the Agent and the Company, in form and substance satisfactory to the Agent, setting forth the filings made with the state securities agencies of California, Florida, Illinois, Oregon, New York, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland and any other states agreed to by the parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Offering.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations Agent's obligation to act as Agent in connection with the offer and sale of the Agent under this Agreement areSecurities, at the option delivery to the Company of the Agentpurchase price for the Securities and the issuance and delivery of the Securities to the purchasers thereof against payment therefor, shall be subject to the satisfaction condition that all representations and warranties of the Company shall be true and correct at or prior and as of each Closing Date with the same effect as though made on such date, to the Initial Closing condition that the Company shall have performed by such date all of its covenants and through each Subsequent Closingobligations hereunder, of each of and to the following conditions:
9.1 All representations (a) No order or communication suspending or threatening to prevent the offer and warranties and other statements sale of the Company herein are, as applicable, at and as of the commencement of the Offering or as of the applicable Closing Date, true and correct in all material respects, and the Company shall have performed in all material respects all its obligations hereunder to be performed on or before such dates.
9.2 The Registration Statement Securities shall have been declared effective by the SEC and no stop order suspending the use of the Prospectus shall have been issued under any applicable law or proceedings thereof initiated or threatened by any regulatory authorityissued, and no proceedings or examinations that may lead to such an order or other action suspending the consummation of the transactions described in the Prospectus communication shall have been issued be pending or proceeding therefor initiated or threatened threatened, by the SEC Commission or by any other regulatory authority.
9.3 At (b) The Agent shall have received on the Initial Final Closing Date the Agent shall have received:
9.3.1 The opinion addressed to the Agent as of the Initial Closing Date of Xxxxxx Xxxxxxxx Xxxxxx & XxxxxxxWhitney LLP, counsel for the Company, in form and substance satisfactory dated the Final Closing Date, addressed to the Agent’s counsel, substantially to the effect that:
9.3.1.1 (i) The Company has been duly incorporated and is validly existing and as a corporation in good standing under the laws of its state of incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the State of NevadaOffering Materials.
9.3.1.2 (ii) Upon exercise of the Agent's Warrant, the Warrant Shares issuable upon such exercise will be validly issued, fully paid and nonassessable. To the knowledge of such counsel, no preemptive or other similar subscription rights of stockholders of the Company, exist with respect to any of the shares issuable upon exercise of the Agent's Warrant which have not been validly exercised or waived prior to the sale of the Securities offered pursuant to the Offering Materials. The capital stock of the Company conforms in all material respects to the description thereof contained in the Offering Materials. A sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Agent's Warrant.
(iii) The Company has the corporate power and authority to conduct its business execute, deliver and perform this Agreement and to ownauthorize, lease issue and operate its properties sell the Securities as described contemplated in this Agreement. The execution and delivery of this Agreement and the Prospectus consummation of the transactions herein contemplated do not and as otherwise contemplatedwill not conflict with or result in a violation of or default under the Articles of Incorporation of the Company, By-laws of the Company, or any agreements with Fujitsu Limited.
9.3.1.3 All Shares offered pursuant to (iv) This Agreement, the Offering Securities and the Agent's Warrant have been duly and validly authorized for issuance, and when issued, sold and delivered by the Company pursuant to the terms of the Offering against payment of the consideration set forth in the Prospectus, all such Shares will be duly and validly issued and fully paid and nonassessable.
9.3.1.4 This Agreement has been duly authorized, executed and delivered by the Company and is are the legal, valid and binding agreement obligations of the Company Company, enforceable in accordance with its their terms, subject, except as to enforceability, to enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium and or other laws of general applicability relating to application affecting the rights of creditors generally and by judicial limitations on the right of specific performance, and other equitable remedies, and except as the enforceability of indemnification or affecting creditors’ rights, to general principles of equity and to the extent that rights to indemnity thereunder contribution provisions hereof may be limited under applicable by federal or state securities laws.
9.3.1.5 (v) The Registration Statement has been declared effective by execution, delivery and performance of this Agreement and the SEC and no stop order suspending the use consummation of the Prospectus transactions described herein will not result in a violation of, or a default under, the terms or provisions of (i) any material bond, debenture, note, contract, lease, license, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument of which such counsel has been issued orknowledge, to which the best Company is a party or by which the Company or any of its properties are bound, or (ii) any material law, order, rule, regulation, writ, injunction or decree known to such counsel’s knowledge after reasonable inquirycounsel of any government, proceedings therefor initiated governmental agency or threatened by court having jurisdiction over the Company or any regulatory authority respecting of its properties (except as to compliance with Regulation D under the issuance Act as to which such counsel needs express no statement). In addition to the matters set forth above, such opinion shall also include a statement to the effect that, although such counsel cannot guarantee the accuracy, completeness or fairness of any of the Shares.
9.3.1.6 No further approvalstatements contained in the Offering Materials, registration, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance such counsel's representation of the Shares Company in the preparation of the foregoing document or this transaction, nothing has come to the attention of such counsel which causes them to believe that the foregoing document (except for approvals of state securities agenciesas to the financial statements, if anysummary financial data and other financial and statistical information included in the Offering Materials, as to which such counsel need not express any opinionno statement) and the consummation of the transactions described in the Prospectus.
9.3.1.7 The information in the Prospectus under the captions: “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock” to the extent such information purports to summarize provisions of law or summarizes legal conclusions, are accurate summaries in all material respects.
9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, and the forms of certificates to be used to evidence the Shares are in due and proper form.
9.3.1.9 To the best of such counsel’s knowledge after reasonable inquiry, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Company required to be described or referred to in the Registration Statement or to be included as exhibits thereto other than those described or referred to therein or included as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. In rendering the foregoing opinions, counsel may rely, as to factual matters, on certificates of officers of the Company and on certificates of appropriate public officials, and, as to certain legal matters, may rely on the opinions of other legal counsel. In addition, such counsel’s opinion may be limited to laws of the United States of America and the State of Nevada. The opinion letter shall also contain a paragraph substantially to the effect that in the course of the preparation of the Registration Statement and the Prospectus, such counsel participated in conferences with officers and representatives of the Company, and with the Company’s independent public accountants, at which conferences the content of the Registration Statement and the Prospectus were discussed and at which conferences such counsel made inquiries of such officers, representatives and accountants, and, on the basis of the foregoing, nothing has come to such counsel’s attention that would lead such counsel to believe that either the Registration Statement or any amendment thereto, contains as of the date the Registration Statement or such amendment is or was declared effective, and as of the Initial Closing Date, or the Prospectus as of the date thereof and as of the Initial Closing Date, contained or contains any when made an untrue statement of a material fact or omitted or omits to state a material fact required to be stated state therein or necessary to make the statements thereintherein as of the date when made, in light of the circumstances under in which they were made, not misleading (it being understood that such misleading. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, counsel does not express any belief with respect may rely, to the financial statementsextent that they deem proper, upon certificates of public officials and the notes and schedules related thereto and other financial information or statistical data included in the Registration Statement, any amendment thereto, or the Prospectus), or otherwise failed or fails to conform to the requirements of the Securities Act. Without limiting the generality of the foregoing, such counsel assumes no responsibility for the accuracy, completeness or fairness of any statements contained in the Registration Statement or Prospectus, other than statements insofar as they relate to legal matters under the captions “Prospectus Summary,” “Risk Factors,” “Business,” “Management,” and “Description of Our Capital Stock.”
9.3.2 At each Closing Date, the Agent shall receive a joint certificate of the Chief Executive Officer and the Chief Financial Officer officers of the Company, dated as provided that copies of such Closing Date, officers' certificates are attached to the effect that, except to the extent set forth in any amendment to the Prospectus (i) since the respective dates as of when information was given in the Prospectus, there has been no change in the financial condition or in the earnings or business of the Company which has caused, or would be reasonably expected to cause, a Material Adverse Effect, whether or not arising in the ordinary course of business, (ii) the representations and warranties in Section 6 are true and correct with the same force and effect as though expressly made at and as of the Initial Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions relating to the Offering and this Agreement on its part to be performed or satisfied at or prior to the applicable Closing Date, (iv) no stop order suspending the use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened and (v) no order suspending the Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatenedopinion.
9.3.3 At each (c) The Agent shall have received on the Final Closing Date after the Initial Closing Datea letter from Merchant, the Agent shall receive the written opinions of Xxxxxx Xxxxxxxx Gould, Smith, Edell, Xxxxxx & Xxxxxxx, Professional Association, patent, trademark and copyright counsel for the Company, dated as of such the Final Closing Date, addressed to the effect set forth in Section 9.3.1; providedAgent, however, that in lieu of such opinions, such counsel may furnish regarding the Agent with a letter to the effect that the Agent may rely on the opinion referred to in Section 9.3.1 to the same extent as if it were dated such Closing Date.
9.3.4 At each Closing Date, the Agent’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale section of the Shares as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warrantiesCompany's Business Plan, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offeringdated September 26, this Agreement and the sale of the Shares as herein contemplated shall be reasonably satisfactory 1996, entitled "Patents Pending," in form and substance acceptable to counsel for the Agent.
(d) Subsequent to the Agent execution and the Agent’s counsel.
9.3.5 The Company shall not have sustained, since the date delivery of the Latest Financial Statements included in the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, this Agreement and since the respective dates as of which information is given in the Prospectusprior to each Closing Date, there shall not have been any change or any development involving a prospective change inchange, in or affecting the general affairs, business prospects, management, financial position, stockholders’ ' equity or results of operations of the Company, otherwise than as set forth or contemplated in the ProspectusOffering Materials, the effect of which, in any such case described abovethe Agent's judgment, is in the Agent’s reasonable judgment so material and adverse as to make the Company and makes it impracticable or inadvisable indadvisable to proceed with the Offering offering or the delivery of the Shares Securities being delivered at each Closing Date.
(e) The Agent shall have received on each Closing Date, a certificate or certificates of the terms chief executive officer and the chief financial officer of the Company to the effect that, as of such Closing Date, each of them severally represents (in the manner contemplated case of the Chief Financial Officer, to the best of his knowledge) that the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct at and as of such Closing Date and the ProspectusCompany has performed all of its obligations under this Agreement to be performed at or prior to such Closing Date.
9.3.6 There (f) The Company shall not exist have furnished to the Agent such further certificates and documents as of the relevant date any of the following: (i) a suspension or material limitation in trading in securities generally on the New York or American Stock Exchanges or the Nasdaq National Market; or (ii) a general moratorium on commercial bank activities or a general moratorium on the withdrawal of deposits from federal stock savings banks insured by the FDICAgent may reasonably have requested.
9.3.7 A memorandum (g) The opinions and certificates mentioned in this Agreement shall have been prepared by counsel be deemed to be in compliance with the Agent, and delivered provisions hereof only if they are in all material respects reasonably satisfactory to the Agent and to Xxxxxx and Xxxxxx, Professional Association, counsel for the CompanyAgent.
(h) If any of the conditions hereinabove provided for in this Section 8 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Agent hereunder may be terminated by the Agent by notifying the Company of such termination in form and substance satisfactory writing or by telegram at or prior to the Agent, setting forth the filings made with the state securities agencies of California, Florida, Illinois, Oregon, New York, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland and any other states agreed to by the parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Offeringrelevant Closing Date.
Appears in 1 contract
Samples: Agency Agreement (Tech Squared Inc)
