Effective Date Opinion of Counsel. On the Effective Date, the Underwriters shall have received the favorable opinion of Kramer, Levin, Naftalis & Franxxx, xxunsel to the Company, dated the Effective Date, addressed to the Underwriters and in form and substance satisfactory to Grauxxxx Xxxlxx & Xillxx, xxunsel to the Underwriters, to the effect that: (i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensing. (ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulations. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement and the Underwriters' Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the Underwriters. (iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from such
Appears in 2 contracts
Samples: Underwriting Agreement (Infodata Systems Inc), Underwriting Agreement (Infodata Systems Inc)
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters shall have received the favorable opinion of KramerWarner & Xxxxxxxxx LLP, Levin, Naftalis & Franxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensing.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulations. The Company has all corporate power and authority to enter into this Agreement Agreement, the Warrant Agreement, the Underwriters' Purchase Option and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the Underwriters.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The offers and sales of the outstanding Common Stock and Stock, options and warrants to purchase shares of Common Stock and promissory notes convertible into Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriters' Purchase Option, the Underwriters' Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Warrants, the Underwriters' Purchase Option, and the Underwriters' Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge after due inquiry, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company, including the Registration Statement.
(vi) To the best of such counsel's knowledge, after due inquiry, the shares of Common Stock and the Warrants are eligible for quotation on Nasdaq.
(vii) This Agreement, the Underwriters' Purchase Option and the Warrant Agreement have each been duly and validly authorized and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Underwriters' Purchase Option and the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument of which such counsel has knowledge and to which the Company is a party or by which the Company or any of its properties or assets may be bound, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any judgment, order or decree of which such counsel has knowledge, statute, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets, or (d) have a material adverse effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under "Business," "Management," "Certain Transactions," "Risk Factors," Principal Stockholders," "Description of Securities" and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they contain descriptions of law, statutes, licenses, rules or regulations or legal conclusions are correct in all material respects. No statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required, nor are any contracts or documents of which such counsel has knowledge of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement not so described or filed as required.
Appears in 2 contracts
Samples: Underwriting Agreement (Augment Systems Inc), Underwriting Agreement (Augment Systems Inc)
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters shall have received the favorable opinion of KramerXxxxxx Xxxxx, LevinP.C., Naftalis & Franxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxx & XillxxGold, xxunsel LLP, counsel to the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns ownership or leases leasing of any real property properties or the character of its operations requires such qualification or licensing, except where the failure to qualify would not have a material adverse effect on the Company.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulations. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the Underwriters.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriters' Purchase Option, the Underwriters' Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Warrants, the Underwriters' Purchase Option, and the Underwriters' Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge, after due inquiry, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
(vi) To the best of such counsel's knowledge, after due inquiry, the Xxxxx, the shares of Common Stock and the Warrants are eligible for quotation on the OTC Bulletin Board.
(vii) This Agreement, the Warrant Agreement and the Underwriters' Purchase Option have each been duly and validly authorized and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Underwriters' Purchase Option, the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument, to which the Company is a party or by which the Company or any of its properties or assets may be bound, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets, or (d) have a material effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under "Business," "Management," "Certain Transactions," "Risk Factors," and "Description of Securities" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions are correct in all material respects. No statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required, nor are any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement not so described or filed as required.
(x) Counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as otherwise set forth in this opinion), no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or the Prospectus nor any amendment or supplement thereto, as of the date of such opinion, contained any untrue statement of a material fact or omitted 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 need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Registration Statement or Prospectus).
(xi) The Registration Statement is effective under the Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act or applicable state securities laws.
(xii) The Company has good and marketable title to, or valid and enforceable leasehold estates in, all items of real and personal property (tangible and intangible) stated in the Prospectus to be owned or leased by it, free and clear of all liens, encumbrances, claims, security interests, defects and restrictions of any material nature whatsoever, other than those referred to in the Prospectus and liens for taxes not yet due and payable.
(xiii) Except as described in the Prospectus, no default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other material agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any term or provision of its Certificate of Incorporation or By-Laws or of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or business, except as described in the Prospectus.
(xiv) To the best of such counsel's knowledge, after due inquiry, the Company owns or possesses, free and clear of all liens or encumbrances and rights thereto or therein by third parties, other than as described in the Prospectus, the requisite licenses or other rights to use all Intangibles and other rights necessary to conduct its business (including, without limitation, any such licenses or rights described in the Prospectus as being licensed to or owned or possessed by the Company), and there is no claim or action by any person pertaining to, or proceeding, pending or to the best of such counsel's knowledge after due inquiry threatened, which challenges the exclusive rights of the Company with respect to any Intangibles used in the conduct of the its business (including without limitation any such licenses or rights described in the Prospectus as being owned or possessed by the Company); to the best of such counsel's knowledge after due inquiry, the Company's current products, services and processes do not infringe on any Intangibles held by third parties except as discussed in the Prospectus; and the Company's Intangibles which have been registered in the United States Patent and Trademark Office have been fully maintained and are in full force and effect.
(xv) To the best of such counsel's knowledge, after due inquiry, except as described in the Prospectus, the Company does not own an interest in any corporation, partnership, joint venture, trust or other business entity.
(xvi) To the best of such counsel's knowledge, after due inquiry, except as set forth in the Prospectus, there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened against the Company, which might result in any material and adverse change in the condition (financial or otherwise), business or prospects of the Company, or might materially and adversely affect the properties or assets thereof.
(xvii) To the best of such counsel's knowledge, after due inquiry, neither the Company nor its officers, employees, agents or other persons acting on their behalf has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer or supplier, any employee or agent of a customer or supplier, any official or employee of any governmental agency or body (domestic or foreign), any political party or candidate for office (domestic or foreign) or any other person who was, is or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) which (a) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (b) if not given in the past, might have had a materially adverse effect on the assets, business or operations of the Company as reflected in the financial statements contained in the Registration Statement or (c) if not continued in the future, might adversely affect the assets, business, operations or prospects of the Company.
(xviii) To the best of such counsel's knowledge, after due inquiry, except as described in the Prospectus, there are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder's or origination fee with respect to the sale of the Securities hereunder or financial consulting arrangements or any other arrangements, agreements, understandings, payments or issuances that may affect the Underwriters' compensation, as determined by the NASD.
(xix) Based solely upon a reading of the minutes of the Board of Directors of the Company, the outstanding options to purchase Common Stock are as set forth on Schedule A annexed hereto. Unless the context clearly indicates otherwise, the term "Company" as used in this Section 4.2.1 shall include each subsidiary of the Company. The opinion of counsel for the Company and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Underwriters in its opinion delivered to the Underwriters.
Appears in 1 contract
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters Representative shall have received the favorable opinion of KramerXxxxxxxx Xxxxx Singer & Xxxxxxxxx, LevinL.L.P., Naftalis & Franxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters Representative and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Xxxxxx & XillxxXxxxxx, xxunsel counsel to the UnderwritersRepresentative, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or to the best of our knowledge the character of its operations as described in the Prospectus requires such qualification or licensing, except where the failure would have a material adverse effect on the business of the Company.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and except where failure to have same would not have, either singly or in the aggregate, a material adverse effect on the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulationsor its operations. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required by it in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required by it for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Representative's Purchase Option, and as contemplated by the Prospectus Option or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained by it and are in full force and effect and have been disclosed to the UnderwritersRepresentative.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or similar contractual rights granted by the CompanyCompany and known to us. The outstanding options and warrants issued by the Company to purchase shares of Common Stock known to us constitute the valid and binding obligations of the Company, enforceable in accordance with their terms. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act or exempt from such registration requirements. The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance, and sale of the Securities has been duly and validly taken. When issued, the Representative's Purchase Option, the Representative's Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby.
(v) To the best of such counsel's knowledge, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company and issued by the Company have the right to require the Company to repurchase, or register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company under the Act.
(vi) To the best of such counsel's knowledge, the shares of Common Stock and the Warrants are eligible for quotation on Nasdaq.
(vii) This Agreement, the Representative's Purchase Option and the Warrant Agreement have each been duly and validly authorized by the Company and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Representative's Purchase Option and the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument, to which the Company is a party or by which the Company or any of its properties or assets may be bound and of which such counsel has knowledge, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets and of which such counsel has knowledge, or (d) have a material effect on any permit, certification, registration, approval, consent, license or franchise of the Company that is known to such counsel.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company and described in the Registration Statement and the Prospectus conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus regarding the Company have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions are correct in all material respects. No statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required, nor are any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement and known to counsel not so described or filed as required.
(x) Counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as otherwise set forth in this opinion), no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or the Prospectus nor any amendment or supplement thereto, as of the date of such opinion, contained any untrue statement of a material fact or omitted 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 need express no opinion with respect to the financial statements and schedules and other financial and statistical data included in the Registration Statement or Prospectus).
(xi) The Securities and Exchange Commission has informed counsel that the Registration Statement is effective under the Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act or applicable state securities laws.
(xii) To such counsel's knowledge, except as described in the Prospectus, no default exists in the due performance and observance of any term, covenant or Blue Sky Laws condition of any license, contract, indenture, mortgage, deed of trust, note, loan or exempt from suchcredit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject, except where such defaults, either singly or in the aggregate, would not have a material adverse effect on the Company or its operations. To such counsel's knowledge, the Company is not in violation of any term or provision of its Certificate of Incorporation or By-Laws. The Company is not in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or business, except where such violations, either singly or in the aggregate, would not have a material adverse effect on the Company or its operations.
(xiii) To the best of counsel's knowledge, (a) the Company owns or possesses, free and clear of all liens and encumbrances, and rights thereto, other than as disclosed in the Prospectus, the rights to all patents, patent applications, patent rights, trademark applications or copyrights used by the Company in its businesses (collectively, "Intellectual Property"); (b) the Company has not received any notice of infringement or of conflict with rights on claims of other with respect to any Intellectual Property owned or used by it which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in any material adverse effect upon the Company, except as described in the Prospectus, and (c) counsel and the Company have no knowledge without any independent investigation of patent rights of others which are or would be infringed by specific products or processes referred to in the Prospectus in such a manner as to materially and adversely affect the Company, except as described in the Prospectus.
(xiv) To the best of such counsel's knowledge, except as described in the Prospectus, the Company does not own an interest in any corporation, partnership, joint venture, trust or other business entity.
(xv) To the best of such counsel's knowledge, except as set forth in the Prospectus, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or threatened against the Company, which might result in any material and adverse change in the condition (financial or otherwise), business or prospects of the Company, or might materially and adversely affect the properties or assets thereof.
(xvi) To the best of such counsel's knowledge, except as described in the Prospectus, there are no claims, payments, issuances, arrangements or understandings with the Company for services in the nature of a finder's or origination fee with respect to the sale of the Securities hereunder or financial consulting arrangements or any other arrangements, agreements, understandings, payments or issuances that may affect the Representative's compensation, as determined by the NASD.
(xvii) To the best of such counsel's knowledge, the Company has filed all Exchange Act reports in a complete and timely manner and the information set forth in such reports is true and correct as of the respective filing dates of each such report with the Commission.
(xviii) The recent repurchases by the Company of its Common Stock on October 23, 1996, November 7, 1996 and December 31, 1996, were effected in accordance with all applicable laws and regulations and to the best of such counsel's knowledge, no persons have any outstanding rights or obligations with respect to such repurchases.
(xix) The Company does not have any obligation or liability pursuant to a recently aborted transaction with respect to a real estate services company. Unless the context clearly indicates otherwise, the term "Company" as used in this Section 4.2.1 shall include each subsidiary of the Company. The opinion of counsel for the Company and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Representative in its opinion delivered to the Representative.
Appears in 1 contract
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters Representative shall have received the favorable opinion of KramerShereff, LevinFriedman, Naftalis Xxxxxxx & FranxxxXxxxxxx, xxunsel LLP, counsel to the Company, dated the Effective Date, addressed to the Underwriters Representative and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the UnderwritersRepresentative, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state the State of incorporation. The Company is duly qualified and licensed New York and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensingqualification, except where the failure to so qualify would not have a material adverse effect on the business of the Company.
(ii) The Company has all requisite corporate power and authority, and and, to the best of such counsel's knowledge, has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and and, to the best of such counsel's knowledge, the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federalpermits, state and local laws, rules and regulationsexcept where the failure to obtain or to comply would not have a material adverse effect on the Company. The Company has all corporate power and authority to enter into this Agreement, the Warrant Agreement and the Unit Purchase Option and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained, except where the failure to obtain such consents, authorizations, approvals and orders would not have a material adverse effect on the Company. No consents, approvals, authorizations or orders of, and no filing with with, any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid offer, authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Unit Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the UnderwritersRepresentative.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holdersholders (except to the extent that certain shareholders of the Company may be liable for employee wages or salaries pursuant to Section 630 of the BCL); and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or or, to the best of such counsel's knowledge, similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock known to such counsel to be outstanding constitute the valid and binding obligations of the Company, enforceable in accordance with their terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The offers and sales authorized and, to such counsel's knowledge, outstanding capital stock of the outstanding Common Stock Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and options paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders (except to the extent that certain shareholders of the Company may be liable for employee wages or salaries pursuant to Section 630 of the BCL). The Securities are not and will not be subject to the statutory preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Unit Purchase Option, the Underwriters' Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor as provided therein, the number and type of securities of the Company called for thereby and such Warrants, the Unit Purchase Option, and the Underwriters' Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification and contribution provisions may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The forms of certificates representing the Securities are in due and proper form under New York corporate law.
(v) To the best of such counsel's knowledge, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to purchase require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
(vi) To the best of such counsel's knowledge, the Units, the shares of Common Stock were at and the Warrants are eligible for quotation on the Nasdaq SmallCap Market and have been approved for quotation on the BSE.
(vii) This Agreement has been duly and validly authorized and, assuming the due and valid authorization, execution and delivery of such agreement by the Representative, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification and contribution provisions may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Unit Purchase Option and the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument to which the Company is a party or by which the Company or any of its properties or assets is bound, except for such breaches, defaults, liens, security interests, charges or encumbrances as would not have a material adverse effect on the Company, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any judgment, order or decree of which such counsel has knowledge, statute, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets except where such violation would not have a material adverse effect on the Company, or (d) have a material adverse effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements and other financial data included therein, as to which no opinion need be rendered) comply as to form in all relevant times either registered under material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the applicable state securities Company conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under "Risk Factors," "Business," "Management," "Certain Transactions," "Principal Shareholders," "Description of Securities" and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they contain descriptions of law, statutes, licenses, rules or Blue Sky Laws regulations are correct in all material respects. No statute or exempt from suchregulation or legal or governmental proceeding required to be described in the Prospectus is not described as required, nor are any contracts or documents of which such counsel has knowledge of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement not so described or filed as required.
Appears in 1 contract
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters Underwriter shall have received the favorable opinion of KramerTroop Xxxxxxxxx Xxxxxxx & Xxxxxx, LevinL.L.P., Naftalis & Franxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters Underwriter and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the UnderwritersUnderwriter, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or to the best of our knowledge the character of its operations as described in the Prospectus requires such qualification or licensing, except where the failure would have a material adverse effect on the business of the Company.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and except where failure to have same would not have, either singly or in the aggregate, a material adverse effect on the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulationsor its operations. The Company has all corporate power and authority to enter into this Agreement, the Warrant Agreement and the Underwriter's Purchase Option and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required by it in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required by it for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Purchase Option, and as contemplated by the Prospectus Option or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained by it and are in full force and effect and have been disclosed to the UnderwritersUnderwriter.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. The outstanding options and warrants issued by the Company to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriter's Purchase Option, the Underwriter's Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Underwriter's Warrants, the Underwriter's Purchase Option, and the Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company and issued by the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company under the Act.
(vi) To the best of such counsel's knowledge, the shares of Common Stock and the Warrants are eligible for quotation on Nasdaq and have been approved for listing, upon notification for issuance, on the BSE.
(vii) This Agreement, the Purchase Option and the Warrant Agreement have each been duly and validly authorized by the Company and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Underwriter's Purchase Option and the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument, to which the Company is a party or by which the Company or any of its properties or assets may be bound and of which such counsel has knowledge, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets and of which such counsel has knowledge, or (d) have a material effect on any permit, certification, registration, approval, consent, license or franchise of the Company that is known to such counsel.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company and described in the Registration Statement and the Prospectus conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under "Business," "Management," "Certain
Appears in 1 contract
Samples: Underwriting Agreement (Dental Medical Diagnostic Systems Inc)
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters --------------------------------- Underwriter shall have received the favorable opinion of KramerXxxx Xxxxxxx, LevinP.C., Naftalis & Franxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters Underwriter and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the UnderwritersUnderwriter, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensing.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulations. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement and the Underwriters' Underwriter's Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the UnderwritersUnderwriter.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriter's Purchase Option will constitute a valid and binding obligation of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and the Underwriter's Purchase Option, when issued, will be enforceable against the Company in accordance with its terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge, after due inquiry, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
(vi) To the best of such counsel's knowledge, after due inquiry, the shares of Common Stock and the Warrants are eligible for quotation on the Nasdaq National Market.
(vii) This Agreement and the Underwriter's Purchase Option have each been duly and validly authorized and, when executed and delivered by the Company, will consti tute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement and the Underwriter's Purchase Option, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument, to which the Company is a party or by which the Company or any of its properties or assets may be bound, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets, or (d) have a material effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under "Business," "Management," "Certain Transactions," "Risk Factors," Principal Stockholders," "Description of Securities" and "Shares Eligible for Future Sale" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions are correct in all material respects. No statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required, nor are any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement not so described or filed as required.
Appears in 1 contract
Effective Date Opinion of Counsel. On the Effective Date, the Underwriters Underwriter shall have received the favorable opinion of KramerCrummy, LevinDel Deo, Naftalis Dolan, Griffinger & FranxxxXxxxxxxxx, xxunsel counsel to the Company, dated the Effective Date, addressed to the Underwriters Underwriter and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the UnderwritersUnderwriter, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensing.
(ii) The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulations. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consents, approvals, authorizations or orders of, and no filing with any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Underwriter's Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the UnderwritersUnderwriter.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriter's Purchase Option, the Underwriter's Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Warrants, the Underwriter's Purchase Option, and the Underwriter's Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge, after due inquiry, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
(vi) To the best of such counsel's knowledge, after due inquiry, the shares of Common Stock and the Warrants are eligible for quotation on Nasdaq SmallCap.
(vii) This Agreement, the Underwriter's Purchase Option, the Warrant Agreement and the Financial Consulting Agreement have each been duly and validly authorized and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Underwriter's Purchase Option, the Warrant Agreement and the Financial Consulting Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument, to which the Company is a party or by which the Company or any of its properties or assets may be bound, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets, or (d) have a material effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus
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Effective Date Opinion of Counsel. On the Effective Date, the Underwriters Underwriter shall have received the favorable opinion of KramerShereff, LevinFriedman, Naftalis Xxxxxxx & FranxxxXxxxxxx, xxunsel LLP, counsel to the Company, dated the Effective Date, addressed to the Underwriters Underwriter and in form and substance satisfactory to Grauxxxx Xxxlxx Xxxxxxxx Mollen & XillxxXxxxxx, xxunsel counsel to the UnderwritersUnderwriter, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which it owns or leases any real property or the character of its operations requires such qualification or licensingqualification, except where the failure to so qualify would not have a material adverse effect on the business of the Company.
(ii) The Company has all requisite corporate power and authority, and and, to the best of such counsel's knowledge, has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental or regulatory officials and bodies to own or lease its properties and conduct its business as described in the Prospectus, and and, to the best of such counsel's knowledge, the Company is and has been doing business in compliance with all such authorizations, approvals, orders, licenses, certificates and permits and all federal, state and local laws, rules and regulationspermits. The Company has all corporate power and authority to enter into this Agreement, the Warrant Agreement and the Underwriter's Purchase Option and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained, except where the failure to obtain such consents, authorizations, approvals and orders would not have a material adverse effect on the Company. No consents, approvals, authorizations or orders of, and no filing with with, any court or governmental agency or other body (other than such as may be required under the Act and applicable Blue Sky laws), is required for the valid offer, authorization, issuance, sale and delivery of the Securities, and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement and the Underwriters' Underwriter's Purchase Option, and as contemplated by the Prospectus or if so required, all such authorizations, approvals, consents, orders, registrations, licenses and permits have been duly obtained and are in full force and effect and have been disclosed to the UnderwritersUnderwriter.
(iii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the statutory preemptive rights of any holders of any security of the Company or or, to the best of such counsel's knowledge after due inquiry, similar contractual rights granted by the Company. The outstanding options and warrants to purchase shares of Common Stock constitute the valid and binding obligations of the Company, enforceable in accordance with their terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The offers and sales of the outstanding Common Stock and options and warrants to purchase shares of Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from suchsuch registration requirements. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus.
(iv) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders (except to the extent that certain shareholders of the Company may be liable for employee wages or salaries pursuant to Section 630 of the New York Business Corporation Law). All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. When issued, the Underwriter's Purchase Option, the Underwriter's Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Warrants, the Underwriter's Purchase Option, and the Underwriter's Warrants, when issued, in each case, will be enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provision may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(v) To the best of such counsel's knowledge after due inquiry, except as set forth in the Prospectus, no holders of any securities of the Company or of any options, warrants or securities of the Company exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
(vi) To the best of such counsel's knowledge, after due inquiry, the shares of Common Stock and the Warrants are eligible for quotation on the Nasdaq SmallCap Market and have been approved for quotation on the BSE.
(vii) This Agreement, the Underwriter's Purchase Option and the Warrant Agreement have each been duly and validly authorized and, when executed and delivered by the Company, and, assuming the due and valid authorization, execution and delivery of such agreements by all parties thereto other than the Company, such agreements will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification provisions may be limited under the federal and state securities laws and public policy, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(viii) The execution, delivery and performance by the Company of this Agreement, the Underwriter's Purchase Option and the Warrant Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby and the compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any material mortgage, deed of trust, note, indenture, loan, contract, commitment or other material agreement or instrument to which the Company is a party or by which the Company or any of its properties or assets may be bound, except for such breaches, defaults, liens, security interests, charges or encumbrances as would not have a material adverse effect on the Company, (b) result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Company, (c) violate any judgment, order or decree of which such counsel has knowledge, statute, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets, or (d) have a material adverse effect on any permit, certification, registration, approval, consent, license or franchise of the Company.
(ix) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and Regulations. The Securities and all other securities issued or issuable by the Company conform in all respects to the description thereof contained in the Registration Statement and the Prospectus. The statements in the Prospectus under
Appears in 1 contract
