Conditions to Obligations of the Agent. The Agent's obligation to act as Agent in connection with the offer and sale of the Securities, the delivery to the Company of the purchase price for the Securities and the issuance and delivery of the Securities to the purchasers thereof against payment therefor, shall be subject to the condition that all representations and warranties of the Company shall be true and correct at and as of each Closing Date with the same effect as though made on such date, to the condition that the Company shall have performed by such date all of its covenants and obligations hereunder, and to the following conditions: (a) No order or communication suspending or threatening to prevent the offer and sale of the Securities shall have been issued, and no proceedings or examinations that may lead to such an order or communication shall be pending or threatened, by the Commission or by any other regulatory authority. (b) The Agent shall have received on the Final Closing Date the opinion of Xxxxxx & Whitney LLP, counsel for the Company, dated the Final Closing Date, addressed to the Agent, to the effect that: (i) The Company is validly existing 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 Offering Materials. (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 execute, deliver and perform this Agreement and to authorize, issue and sell the Securities as contemplated in this Agreement. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will 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. (iv) This Agreement, the Securities and the Agent's Warrant have been duly authorized, executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or other laws of general 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 contribution provisions hereof may be limited by federal or state securities laws. (v) The execution, delivery and performance of this Agreement and the consummation of the 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 knowledge, to which the 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 of any government, governmental agency or court having jurisdiction over the Company or any of its properties (except as to compliance with Regulation D under the 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 statements contained in the Offering Materials, in connection with such counsel's representation of the 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 as to the financial statements, summary financial data and other financial and statistical information included in the Offering Materials, as to which such counsel need express no statement) contains as of the date when made an untrue statement of a material fact or omits to state a material fact required to be state therein or necessary to make the statements therein as of the date when made, in light of the circumstances in which they were made, not misleading. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent that they deem proper, upon certificates of public officials and of the officers of the Company, provided that copies of such officers' certificates are attached to the opinion. (c) The Agent shall have received on the Final Closing Date a letter from Merchant, Gould, Smith, Edell, Xxxxxx & Xxxxxxx, Professional Association, patent, trademark and copyright counsel for the Company, dated the Final Closing Date, addressed to the Agent, regarding the section of the Company's Business Plan, dated September 26, 1996, entitled "Patents Pending," in form and substance acceptable to counsel for the Agent. (d) Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, there shall not have been any change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Offering Materials, the effect of which, in the Agent's judgment, is material and adverse to the Company and makes it impracticable or indadvisable to proceed with the offering or the delivery of the Securities being delivered at each Closing Date. (e) The Agent shall have received on each Closing Date, a certificate or certificates of the 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 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 Company has performed all of its obligations under this Agreement to be performed at or prior to such Closing Date. (f) The Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably have requested. (g) The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the 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 Agent. (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 writing or by telegram at or prior to the relevant Closing Date.
Appears in 1 contract
Samples: Agency Agreement (Tech Squared Inc)
Conditions to Obligations of the Agent. The Agent's obligation to act as Agent in connection with the offer and sale obligations of the SecuritiesAgent under this Agreement are, at the delivery to the Company option of the purchase price for the Securities and the issuance and delivery of the Securities to the purchasers thereof against payment thereforAgent, shall be subject to the condition that all 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 shall be true and correct herein are, as applicable, at and as of each the commencement of the Offering or as of the applicable Closing Date with the same effect as though made on such dateDate, to the condition that true and correct in all material respects, and the Company shall have performed by in all material respects all its obligations hereunder to be performed on or before such date all of its covenants and obligations hereunder, and to the following conditions:dates.
(a) No order or communication suspending or threatening to prevent the offer and sale of the Securities 9.2 The Registration Statement shall have been issueddeclared 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 proceedings or examinations that may lead to such an order or communication other action suspending the consummation of the transactions described in the Prospectus shall be pending have been issued or threatened, proceeding therefor initiated or threatened by the Commission SEC or by any other regulatory authority.
(b) The 9.3 At the Initial Closing Date the Agent shall have received on received:
9.3.1 The opinion addressed to the Final Agent as of the Initial Closing Date the opinion of Xxxxxx Xxxxxxxx Xxxxxx & Whitney LLPXxxxxxx, counsel for the Company, dated the Final Closing Date, addressed in form and substance satisfactory to the Agent’s counsel, substantially to the effect that:
(i) 9.3.1.1 The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its state the State of incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering MaterialsNevada.
(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) 9.3.1.2 The Company has the corporate power and authority to execute, deliver and perform this Agreement conduct its business and to authorizeown, issue lease and sell operate its properties as described in the Securities Prospectus and as contemplated in this Agreement. The execution otherwise contemplated.
9.3.1.3 All Shares offered pursuant to the Offering have been duly and delivery of this Agreement validly authorized for issuance, and when issued, sold and delivered by the consummation Company pursuant to the terms of the transactions herein contemplated do not and will not conflict with or result in a violation of or default under the Articles of Incorporation Offering against payment of the Companyconsideration set forth in the Prospectus, By-laws of the Company, or any agreements with Fujitsu Limitedall such Shares will be duly and validly issued and fully paid and nonassessable.
(iv) 9.3.1.4 This Agreement, the Securities and the Agent's Warrant have Agreement has been duly authorized, executed and delivered by the Company and are is the legal, valid and binding obligations agreement of the Company, Company enforceable in accordance with their its terms, except subject, as enforceability may be limited by the application of to enforceability, to bankruptcy, insolvency, reorganization, moratorium or and other laws of general application applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that 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 contribution provisions hereof to indemnity thereunder may be limited by federal or state securities under applicable laws.
(v) 9.3.1.5 The executionRegistration 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 and performance of this Agreement 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 herein will not result in a violation of, or a default under, the terms or 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 (i) any law or summarizes legal conclusions, are accurate summaries in all material bondrespects.
9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, debentureand 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, notethere are no material contracts, contractindentures, lease, license, indenture, mortgage, deed of trustmortgages, loan agreementagreements, joint venture notes, leases or other agreement or instrument instruments of which such counsel has knowledge, to which the Company is a party required to be described or by which 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 or any and on certificates of its properties are boundappropriate public officials, or (ii) any material lawand, order, rule, regulation, writ, injunction or decree known to such counsel of any government, governmental agency or court having jurisdiction over the Company or any of its properties (except as to compliance with Regulation D under certain legal matters, may rely on the Act as to which such counsel needs express no statement)opinions of other legal counsel. In addition to the matters set forth aboveaddition, 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 include contain a statement paragraph substantially to the effect that, although such counsel cannot guarantee the accuracy, completeness or fairness of any of the statements contained that in the Offering Materials, in connection with such counsel's representation course of the Company in the preparation of the foregoing document or this transactionRegistration 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 the such counsel’s attention of that would lead such counsel which causes them to believe that either the foregoing document (except as to the financial statementsRegistration Statement or any amendment thereto, summary financial data and other financial and statistical information included in the Offering Materials, as to which such counsel need express no statement) contains as of the date when made an 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 state stated therein or necessary to make the statements therein as of the date when madetherein, in light of the circumstances in under which they were made, not misleading. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, misleading (it being understood that such counsel may rely, does not express any belief with respect to the extent that they deem properfinancial statements, 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 officers 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, provided that copies dated as of such officers' certificates are attached Closing Date, to the opinioneffect 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.
(c) The 9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall have received on receive the Final Closing Date a letter from Merchant, Gould, Smith, Edell, written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, Professional Association, patent, trademark and copyright counsel for the Company, dated the Final as of such Closing Date, addressed 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, regarding ’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the section purpose of enabling them to pass upon the sale of the Company's Business PlanShares as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, dated September 26or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, 1996, entitled "Patents Pending," this Agreement and the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance acceptable to counsel for the Agent and the Agent’s counsel.
(d) Subsequent to 9.3.5 The Company shall not have sustained, since the execution 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 delivery since the respective dates as of this Agreement and prior to each Closing Datewhich information is given in the Prospectus, there shall not have been any change or any development involving a prospective changechange in, 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 Offering MaterialsProspectus, the effect of which, in any such case described above, is in the Agent's judgment, is ’s reasonable judgment so material and adverse as to the Company and makes make it impracticable or indadvisable inadvisable to proceed with the offering Offering or the delivery of the Securities being delivered at each Closing DateShares 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: (ei) The Agent 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 received on each Closing Date, a certificate or certificates of the chief executive officer and the chief financial officer of the Company been prepared by counsel to the effect thatAgent, as of such Closing Date, each of them severally represents (in the 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 Company has performed all of its obligations under this Agreement to be performed at or prior to such Closing Date.
(f) The Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably have requested.
(g) The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory delivered to the Agent and the Company, in form and substance satisfactory to Xxxxxx and Xxxxxx, Professional Association, counsel for the Agent.
(h) If , setting forth the filings made with the state securities agencies of California, Oregon, New York, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland and any of the conditions hereinabove provided for in this Section 8 shall not have been fulfilled when and as required by this Agreement other states agreed to be fulfilled, the obligations of the Agent hereunder may be terminated by the Agent by notifying parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Company of such termination in writing or by telegram at or prior to the relevant Closing DateOffering.
Appears in 1 contract
Conditions to Obligations of the Agent. The Agent's obligation to act as Agent in connection with the offer and sale obligations of the SecuritiesAgent under this Agreement are, at the delivery to the Company option of the purchase price for the Securities and the issuance and delivery of the Securities to the purchasers thereof against payment thereforAgent, shall be subject to the condition that all 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 shall be true and correct herein are, as applicable, at and as of each the commencement of the Offering or as of the applicable Closing Date with the same effect as though made on such dateDate, to the condition that true and correct in all material respects, and the Company shall have performed by in all material respects all its obligations hereunder to be performed on or before such date all of its covenants and obligations hereunder, and to the following conditions:dates.
(a) No order or communication suspending or threatening to prevent the offer and sale of the Securities 9.2 The Registration Statement shall have been issueddeclared 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 proceedings or examinations that may lead to such an order or communication other action suspending the consummation of the transactions described in the Prospectus shall be pending have been issued or threatened, proceeding therefor initiated or threatened by the Commission SEC or by any other regulatory authority.
(b) The 9.3 At the Initial Closing Date the Agent shall have received on received:
9.3.1 The opinion addressed to the Final Agent as of the Initial Closing Date the opinion of Xxxxxx Xxxxxxxx Xxxxxx & Whitney LLPXxxxxxx, counsel for the Company, dated the Final Closing Date, addressed in form and substance satisfactory to the Agent’s counsel, substantially to the effect that:
(i) 9.3.1.1 The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its state the State of incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering MaterialsNevada.
(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) 9.3.1.2 The Company has the corporate power and authority to execute, deliver and perform this Agreement conduct its business and to authorizeown, issue lease and sell operate its properties as described in the Securities Prospectus and as contemplated in this Agreement. The execution otherwise contemplated.
9.3.1.3 All Shares offered pursuant to the Offering have been duly and delivery of this Agreement validly authorized for issuance, and when issued, sold and delivered by the consummation Company pursuant to the terms of the transactions herein contemplated do not and will not conflict with or result in a violation of or default under the Articles of Incorporation Offering against payment of the Companyconsideration set forth in the Prospectus, By-laws of the Company, or any agreements with Fujitsu Limitedall such Shares will be duly and validly issued and fully paid and nonassessable.
(iv) 9.3.1.4 This Agreement, the Securities and the Agent's Warrant have Agreement has been duly authorized, executed and delivered by the Company and are is the legal, valid and binding obligations agreement of the Company, Company enforceable in accordance with their its terms, except subject, as enforceability may be limited by the application of to enforceability, to bankruptcy, insolvency, reorganization, moratorium or and other laws of general application applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that 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 contribution provisions hereof to indemnity thereunder may be limited by federal or state securities under applicable laws.
(v) 9.3.1.5 The executionRegistration 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 and performance of this Agreement 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 herein will not result in a violation of, or a default under, the terms or 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 (i) any law or summarizes legal conclusions, are accurate summaries in all material bondrespects.
9.3.1.8 The terms and provisions of the Shares conform to the descriptions thereof contained in the Prospectus, debentureand 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, notethere are no material contracts, contractindentures, lease, license, indenture, mortgage, deed of trustmortgages, loan agreementagreements, joint venture notes, leases or other agreement or instrument instruments of which such counsel has knowledge, to which the Company is a party required to be described or by which 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 or any and on certificates of its properties are boundappropriate public officials, or (ii) any material lawand, order, rule, regulation, writ, injunction or decree known to such counsel of any government, governmental agency or court having jurisdiction over the Company or any of its properties (except as to compliance with Regulation D under certain legal matters, may rely on the Act as to which such counsel needs express no statement)opinions of other legal counsel. In addition to the matters set forth aboveaddition, 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 include contain a statement paragraph substantially to the effect that, although such counsel cannot guarantee the accuracy, completeness or fairness of any of the statements contained that in the Offering Materials, in connection with such counsel's representation course of the Company in the preparation of the foregoing document or this transactionRegistration 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 the such counsel’s attention of that would lead such counsel which causes them to believe that either the foregoing document (except as to the financial statementsRegistration Statement or any amendment thereto, summary financial data and other financial and statistical information included in the Offering Materials, as to which such counsel need express no statement) contains as of the date when made an 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 state stated therein or necessary to make the statements therein as of the date when madetherein, in light of the circumstances in under which they were made, not misleading. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, misleading (it being understood that such counsel may rely, does not express any belief with respect to the extent that they deem properfinancial statements, 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 officers 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, provided that copies dated as of such officers' certificates are attached Closing Date, to the opinioneffect 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.
(c) The 9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall have received on receive the Final Closing Date a letter from Merchant, Gould, Smith, Edell, written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, Professional Association, patent, trademark and copyright counsel for the Company, dated the Final as of such Closing Date, addressed 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, regarding ’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the section purpose of enabling them to pass upon the sale of the Company's Business PlanShares as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, dated September 26or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, 1996, entitled "Patents Pending," this Agreement and the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance acceptable to counsel for the Agent and the Agent’s counsel.
(d) Subsequent to 9.3.5 The Company shall not have sustained, since the execution 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 delivery since the respective dates as of this Agreement and prior to each Closing Datewhich information is given in the Prospectus, there shall not have been any change or any development involving a prospective changechange in, 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 Offering MaterialsProspectus, the effect of which, in any such case described above, is in the Agent's judgment, is ’s reasonable judgment so material and adverse as to the Company and makes make it impracticable or indadvisable inadvisable to proceed with the offering Offering or the delivery of the Securities being delivered at each Closing DateShares 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: (ei) The Agent 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 received on each Closing Date, a certificate or certificates of the chief executive officer and the chief financial officer of the Company been prepared by counsel to the effect thatAgent, as of such Closing Date, each of them severally represents (in the 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 Company has performed all of its obligations under this Agreement to be performed at or prior to such Closing Date.
(f) The Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably have requested.
(g) The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory delivered to the Agent and the Company, in form and substance satisfactory to Xxxxxx and Xxxxxx, Professional Association, counsel for the Agent.
(h) If , 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 of the conditions hereinabove provided for in this Section 8 shall not have been fulfilled when and as required by this Agreement other states agreed to be fulfilled, the obligations of the Agent hereunder may be terminated by the Agent by notifying parties pursuant to Section 5.1 hereof, and any exemptions relied on in such jurisdictions in connection with the Company of such termination in writing or by telegram at or prior to the relevant Closing DateOffering.
Appears in 1 contract
Conditions to Obligations of the Agent. The Agent's obligation to act as Agent in connection with the offer and sale obligations of the SecuritiesAgent under this Agreement are, at the delivery to the Company option of the purchase price for the Securities and the issuance and delivery of the Securities to the purchasers thereof against payment thereforAgent, shall be subject to the condition that all 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 shall be true and correct herein are, as applicable, at and as of each the commencement of the Offering or as of the applicable Closing Date with the same effect as though made on such dateDate, to the condition that true and correct in all material respects, and the Company shall have performed by in all material respects all its obligations hereunder to be performed on or before such date all of its covenants and obligations hereunder, and to the following conditions:dates.
(a) 9.2 No stop order or communication similar prohibition suspending or threatening to prevent the offer and sale use of the Securities Subscription Documents shall have been issuedissued under any applicable law or proceedings thereof initiated or threatened by any regulatory authority, and no proceedings or examinations that may lead to such an order or communication other action suspending the consummation of the transactions described in the Subscription Documents shall be pending have been issued or threatened, proceeding therefor initiated or threatened by the Commission SEC or by any other regulatory authority.
(b) The 9.3 At the Initial Closing Date the Agent shall have received on received:
9.3.1 The opinion addressed to the Final Agent as of the Initial Closing Date the opinion of Xxxxxx Xxxxxxxx Xxxxxx & Whitney LLPXxxxxxx, counsel for the Company, dated the Final Closing Date, addressed in form and substance satisfactory to the Agent’s counsel, substantially to the effect that:
(i) 9.3.1.1 The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its state the State of incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering MaterialsNevada.
(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) 9.3.1.2 The Company has the corporate power and authority to execute, deliver and perform this Agreement conduct its business and to authorizeown, issue lease and sell operate its properties as described in the Securities Subscription Documents and as contemplated in this Agreement. The execution and delivery otherwise contemplated.
9.3.1.3 All shares of this Agreement and the consummation Common Stock issuable upon conversion of the transactions herein contemplated do not Notes pursuant to the terms thereof have been duly and will not conflict with or result in a violation of or default under validly authorized for issuance, and when issued and delivered by the Articles of Incorporation Company pursuant to the terms of the Company, By-laws of the Company, or any agreements with Fujitsu LimitedNotes upon conversion will be duly and validly issued and fully paid and nonassessable.
(iv) 9.3.1.4 This Agreement, the Securities and the Agent's Warrant have Agreement has been duly authorized, executed and delivered by the Company and are is the legal, valid and binding obligations agreement of the Company, Company enforceable in accordance with their its terms, except subject, as enforceability may be limited by the application of to enforceability, to bankruptcy, insolvency, reorganization, moratorium or and other laws of general application applicability relating to or affecting creditors’ rights, to general principles of equity and to the extent that 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 contribution provisions hereof to indemnity thereunder may be limited by federal or state securities under applicable laws.
(v) The execution9.3.1.5 No stop order or other prohibition suspending the use of the 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 Notes.
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 and performance of this Agreement Agreement, the issuance of the 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 herein will not result in a violation ofthe Subscription Documents. In rendering the foregoing opinions, or a default undercounsel may rely, the terms or provisions as to factual matters, on certificates of (i) any material bond, debenture, note, contract, lease, license, indenture, mortgage, deed officers of trust, loan agreement, joint venture or other agreement or instrument of which such counsel has knowledge, to which the Company is a party or by which the Company or any and on certificates of its properties are boundappropriate public officials, or (ii) any material lawand, order, rule, regulation, writ, injunction or decree known to such counsel of any government, governmental agency or court having jurisdiction over the Company or any of its properties (except as to compliance with Regulation D under certain legal matters, may rely on the Act as to which such counsel needs express no statement)opinions of other legal counsel. In addition to the matters set forth aboveaddition, 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 include contain a statement paragraph substantially to the effect that, although such counsel cannot guarantee the accuracy, completeness or fairness of any of the statements contained that in the Offering Materials, in connection with such counsel's representation course of the Company in the preparation of the foregoing document or this transactionSubscription Documents and the Subscription 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 Subscription Documents and the 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 the such counsel’s attention of that would lead such counsel which causes them to believe that either the foregoing document (except as to the financial statementsSubscription Documents or any amendment thereto, summary financial data and other financial and statistical information included in the Offering Materials, as to which such counsel need express no statement) contains as of the date when made an the Subscription Documents or such amendment is or was declared effective, and as of the Initial Closing Date, or the 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 state stated therein or necessary to make the statements therein as of the date when madetherein, in light of the circumstances in under which they were made, not misleading. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, misleading (it being understood that such counsel may rely, does not express any belief with respect to the extent that they deem properfinancial statements, upon certificates of public officials and the notes and schedules related thereto and other financial information or statistical data included in the Subscription Documents, any amendment thereto, or the Subscription Documents), or otherwise failed or fails to conform to the requirements of the officers 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 Subscription Documents or Subscription Documents, other than statements insofar as they relate to legal matters under the captions “Risk Factors” and “Business.”
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, provided that copies dated as of such officers' certificates are attached Closing Date, to the opinioneffect that, except to the extent set forth in any amendment to the Subscription Documents (i) since the respective dates as of when information was given in the Subscription 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 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 Subscription Documents has been issued and no proceedings for that purpose have been initiated or threatened.
(c) The 9.3.3 At each Closing Date after the Initial Closing Date, the Agent shall have received on receive the Final Closing Date a letter from Merchant, Gould, Smith, Edell, written opinions of Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, Professional Association, patent, trademark and copyright counsel for the Company, dated the Final as of such Closing Date, addressed 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, regarding ’s counsel shall have been furnished with such documents and opinions as they may reasonably require for the section purpose of enabling them to pass upon the sale of the Company's Business PlanNotes as herein contemplated and related proceedings or in order to evidence the accuracy or completeness of any of the representations or warranties, dated September 26or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with the Offering, 1996, entitled "Patents Pending," this Agreement and the sale of the Notes as herein contemplated shall be reasonably satisfactory in form and substance acceptable to counsel for the Agent and the Agent’s counsel.
(d) Subsequent to 9.3.5 The Company shall not have sustained, since the execution date of the Latest Financial Statements included in the Subscription 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 Subscription Documents, and delivery since the respective dates as of this Agreement and prior to each Closing Datewhich information is given in the Subscription Documents, there shall not have been any change or any development involving a prospective changechange in, 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 Offering MaterialsSubscription Documents, the effect of which, in any such case described above, is in the Agent's judgment, is ’s reasonable judgment so material and adverse as to the Company and makes make it impracticable or indadvisable inadvisable to proceed with the offering Offering or the delivery of the Securities being delivered at each Closing DateNotes on the terms and in the manner contemplated in the Subscription Documents.
(e) The Agent 9.3.6 There shall have received on each Closing Date, a certificate or certificates not exist as of the 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 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 Company has performed all of its obligations under this Agreement to be performed at or prior to such Closing Date.
(f) The Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably have requested.
(g) The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the 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 Agent.
(h) If relevant date any of the conditions hereinabove provided for following: (i) a suspension or material limitation in this Section 8 shall not have been fulfilled when and as required by this Agreement to be fulfilled, trading in securities generally on the obligations 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 the Agent hereunder may be terminated deposits from federal stock savings banks insured by the Agent by notifying the Company of such termination in writing or by telegram at or prior to the relevant Closing DateFDIC.
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