Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 6 contracts

Samples: Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx, Senior~~ the Associate General Counsel - Treasury of the Company, or ~~another~~ of such other counsel satisfactory to such Agent(s), dated as of such Commencement Date or Settlement Date, as the ~~Company’s lawyers~~ case may be, in form and substance satisfactory to the ~~Underwriters~~Agents and counsel for the Agents, ~~dated the Closing Date~~ to the effect that: (A) The Company has been duly incorporated and is a validly existing ~~corporation in good standing~~ under the laws of the State of Delaware. (B) The ~~Company~~ Indenture has been duly authorized, executed and delivered by the ~~corporate power~~ Company, is a valid and ~~authority~~ binding agreement of the Company, enforceable in accordance with its terms, subject to ~~own~~applicable bankruptcy, ~~lease~~ insolvency and ~~operate its properties~~ similar laws affecting creditors’ rights generally, concepts of reasonableness and ~~to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company~~ equitable principles of general applicability. The Indenture has been qualified under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware1939 Act. (C) ~~Each~~ [For Commencement Date only: The Notes, when authorized] [For Settlement Dates: The Notes have been authorized], executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by any purchaser of Notes sold through an Agent as agent or any Agent as principal pursuant to the applicable Terms Agreement, would be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms (subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability) and would entitle the ~~Significant Subsidiaries is duly qualified~~ holders thereof to ~~do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the ~~failure to so qualify would not have any material adverse effect upon the business, condition or properties~~ benefits of the ~~Company and its subsidiaries, taken as a whole~~Indenture. (D) ~~All~~ This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof as a result of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s ~~authorized equity capitalization is as set forth in~~ having entered into a Terms Agreement requiring such opinion, the ~~Final Prospectus. (E~~applicable Terms Agreement) ~~This Agreement~~ has been duly ~~and validly~~ authorized, executed and delivered by the Company. (E) Neither the execution and delivery of this Agreement nor the issuance and sale of the Notes by the Company as provided herein will (i) contravene the certificate of incorporation or by-laws of the Company or (ii) result in any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York or any federal law of the United States of America (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a whole. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements contained in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “Description of Notes”, “Description of Debt Securities,” and “Plan of ~~Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest)~~Distribution,” insofar as ~~they~~ such statements purport to summarize certain provisions of documents (or ~~laws specifically~~ provisions thereof) or statutes (or provisions thereof) referred to therein, ~~are accurate summaries of such provisions or laws or of~~ fairly present the ~~sources from~~ matters referred to therein. (G) Each document incorporated by reference in the Prospectus which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect was filed pursuant to the ~~Financial Industry Regulatory Authority~~1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, ~~Inc. (“FINRA”)~~ as to which ~~no opinion~~ such counsel need ~~be rendered)~~not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder. (~~I) The Indenture is qualified under the Trust Indenture Act. (J~~H) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (KI) The Registration ~~Statement,~~ Statement at the ~~Final~~ Effective Time and the Prospectus and ~~each amendment thereof or supplement~~ any supplements and amendments thereto as of their respective effective or issue dates (~~other than~~ except for the financial statements and schedules and other financial and statistical ~~information~~ material contained ~~therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included~~ or incorporated by reference ~~therein~~therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Notes, as to ~~which~~ which, in each case, such counsel need express no ~~opinion need be rendered~~opinion) ~~complied~~ comply as to form in all material respects with the ~~requirements of the Securities Act, the Trust Indenture~~ 1933 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts~~the Commission thereunder. (LJ) To [For Commencement Date and Settlement Dates only] Nothing has come to such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which attention that would ~~have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to~~ lead such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. believe that (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required except for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and schedules and other financial and statistical ~~information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included~~ material contained or incorporated by reference ~~therein~~therein or omitted therefrom, as to which ~~no opinion~~ counsel need ~~be rendered). In rendering~~ not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, ~~such counsel may rely~~ contained an 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 not misleading, [and] (Aii) [For Settlement Dates only: the Pricing Disclosure Material included as of the Pricing Effective Time for the Notes to ~~matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States,~~ be sold pursuant to the ~~extent deemed proper~~ applicable Terms Agreement], and ~~specified in such opinion, upon~~ the ~~opinion~~ Prospectus included as of ~~counsel who are satisfactory to counsel for~~ the ~~Underwriters with respect~~ Commencement Date [For Settlement Dates only: and as of the date of the Pricing Supplement relating to the ~~transactions contemplated hereby; and (B) as~~ Notes to ~~matters of fact,~~ be sold pursuant to the ~~extent deemed proper~~applicable Terms Agreement and the settlement date as the case may be,] any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, ~~on certificates of responsible officers~~ in the light of the ~~Company and its subsidiaries and public officials~~circumstances under which they were made, not misleading.

Appears in 2 contracts

Samples: u.s. Distribution Agreement (General Electric Capital Corp), u.s. Distribution Agreement (General Electric Capital Corp)

Opinion of Company Counsel. The ~~opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory~~ Company shall have furnished to the ~~Underwriters~~Representative the opinion, dated the Closing Date and the Over- allotment Closing Date, addressed to the Representative, of Davix, Xxxxxx & Xtubxx XXX and/or such other counsel as may be acceptable to the Representative, to the effect that, based upon a review by them of the Registration Statement, Prospectus, the Company's articles of incorporation, bylaws, and relevant corporate proceedings, an examination of such statutes and such other investigation by such counsel as they deem necessary to express such opinion: (A1) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of its respective state of incorporation (specifying the ~~State~~ same and attaching a certificate of ~~Delaware. (B) The Company has the~~ good standing for each), with full corporate power and authority to ~~own, lease~~ own and operate its properties and to ~~conduct~~ carry on its business as ~~described~~ set forth in the ~~Final~~ Registration Statement and Prospectus~~, and~~ . (2) The Company is duly qualified and registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business ~~of banking under the National Bank Act of 1864, as amended;~~ in which they are respectively engaged and ~~WFC Holdings Corporation (“WFC Holdings,”~~ are qualified and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each and every foreign or domestic jurisdiction in which their ownership of property or their conduct of business requires such qualification ~~wherein it owns~~ or ~~leases any material properties or conducts any material business, except where the~~ registration and in which failure to so qualify would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business, condition or properties~~ business of the Company. (3) The Company has an authorized and outstanding capitalization as set forth in the Registration Statement and Prospectus; the Shares and the Representative's Warrant conform to the statements concerning them in the Registration Statement and Prospectus; the outstanding Common Stock of the Company has been duly and ~~its subsidiaries~~validly issued and is fully paid and nonassessable and no Common Stock is subject to any preemptive rights; cumulative voting is not permitted by the holders of any of the Company's securities; the Shares, ~~taken as a whole~~Representative's Warrant, and the shares of Representative's Warrant Stock issuable upon exercise of the Representative's Warrant, have been duly and validly authorized and, upon issuance thereof and payment therefor in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens, encumbrances, equities and claims whatsoever, and will not be subject to any preemptive rights. (D4) ~~All of the outstanding shares of capital stock of each Significant Subsidiary have~~ The Representative's Warrant has been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, instruments enforceable against the Company in accordance with their terms~~, except~~ . (5) A sufficient number of shares of Common Stock have been duly reserved for issuance as ~~enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement~~ Representative's Warrant Stock upon exercise of ~~creditors’ rights generally or by general equity principles~~ the Representative's Warrant. (~~regardless~~ 6) The holders of ~~whether enforceability is considered in a proceeding in equity or at law)~~the issued and outstanding shares of Common Stock are, and ~~except further as enforcement thereof may be limited by governmental authority to limit~~the holders of the Shares, ~~delay or prohibit~~ Representative's Warrant Stock and Representative's Warrant (when such securities have been issued and fully paid for in accordance with the ~~making~~ provisions of ~~payments outside~~ the ~~United States, and each holder of Notes~~ Registration Statement) will be entitled to the ~~benefits of~~ rights and preferences set forth in the ~~Indenture~~certificates representing the same. (H7) ~~The statements in~~ No consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the ~~Final Prospectus (other than statements furnished in writing to~~ valid authorization, issue or sale of the ~~Company by~~ Shares, Representative's Warrant Stock or ~~on behalf of an Underwriter expressly for use therein)~~ Representative's Warrant hereunder, except as required under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents 1933 Act or ~~laws specifically referred to therein, are accurate summaries of such provisions~~ state Blue Sky or ~~laws or of the sources from which such summaries were derived (~~other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)securities laws. (I8) The issuance and sale of the Shares, Representative's Warrant Stock and Representative's Warrant and the consummation of the transactions herein contemplated and compliance with the terms of this Agreement will not conflict with or result in a breach of any of the terms, conditions, or provisions of, or constitute a default under, the Articles of Incorporation, as amended, or Bylaws of the Company, as amended, or any note, indenture, mortgage, deed of trust or other agreement or instrument (however characterized or described) ~~The Indenture~~ known to such counsel to which the Company is ~~qualified under~~ a party or by which the ~~Trust Indenture Act~~Company or any of its property is bound or any existing laws, order, rule, regulation, writ, injunction or decree known to such counsel of any government, governmental instrumentality, agency, body, arbitration tribunal or court, domestic or foreign, having jurisdiction over the Company or its property. (J9) The Registration Statement is and Prospectus have become effective under the ~~Securities~~ 1933 Act and, to the knowledge of such counsel, no ~~stop~~ order suspending the effectiveness of the Registration ~~Statement, as amended,~~ Statement pursuant to Section 8 of the 1933 Act or ~~any notice under Rule 401(g)(2) that would prevent its use,~~ otherwise has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel, threatened~~ instituted or are pending or contemplated by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ Commission under the ~~Securities Act. (K) The~~ 1933 Act or otherwise, and the Registration ~~Statement, the Final~~ Statement and Prospectus and each amendment ~~thereof or~~ and supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each of those Acts~~Rules and Regulations thereunder (except that no opinion needs to be expressed as to financial statements and financial data contained in the Registration Statement or Prospectus). (L10) The Company owns or holds by valid lease the real and personal properties as shown in the Registration Statement and Prospectus and, to the extent such properties are owned by the Company, they are owned free and clear of all liens, (11) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company. (12) The Company owns one hundred percent (100%) of all of the issued and outstanding voting stock of each of the Subsidiaries. (13) The form of certificate for the Shares is in due and proper form and complies with all applicable statutory requirements. (14) Nothing has come to the attention of counsel that all prior offers and sales of securities by the Company were not exempt from registration under the Act and were not either registered pursuant to, or exempt from registration under, all pertinent state securities, or blue sky, laws. (15) Since _______, 1995, all prior offers and sales of securities of the Company were exempt from registration under the Act and were either registered pursuant to, or exempt from registration under, all pertinent state securities, or blue sky, laws. (16) To such counsel’s 's knowledge, there are no pending legal proceedings relating to trademarks, tradenames or ~~governmental~~ service marks of the Company, and no such proceedings ~~pending~~ are threatened or ~~threatened which are required~~ contemplated. Such opinion shall also cover such other matters incident to ~~be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of~~ the transactions contemplated by this Agreement ~~and~~ in form satisfactory to the ~~Notes nor~~ Representative's counsel as the ~~incurrence~~ Representative shall reasonably request. As an illustration of the ~~obligations therein contemplated~~foregoing, but not as a limitation thereof, it is expected that such opinion will ~~conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which~~ cover the ownership by the Company of all licenses required to conduct their businesses and such matters concerning disclosure of and compliance with applicable environmental laws or ~~any Significant Subsidiary is a party or bound and which constitutes a material contract and is~~ regulations as may be deemed advisable by the Representative. In addition to the matters set forth ~~as an exhibit~~ above, such opinion shall also include a statement to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~effect that, ~~or any other indenture or material agreement or instrument known to~~ although such counsel is not passing upon and ~~to which the Company or~~ does not assume any ~~Significant Subsidiary is a party or bound~~responsibility for, the ~~breach~~ accuracy, completeness or fairness of ~~which would have a material adverse effect on the financial condition~~ any of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to statements contained in the Registration Statement or Prospectus and such counsel makes no representation that it has independently verified the ~~Final Prospectus~~ accuracy, completeness or ~~to be filed as exhibits to~~ fairness of such statements, in connection with such counsel's representation of the Company in the preparation of the Registration Statement ~~other than those described or referred~~ and Prospectus, nothing came to ~~therein or filed or incorporated by reference~~ the attention of such counsel which caused it to conclude that, as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the ~~transactions contemplated by this Agreement~~Effective Date, ~~except such as may be required under~~ the ~~Blue Sky laws of any jurisdiction~~ Closing Date or ~~regulations adopted by FINRA in connection with~~ the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference thereinOver-allotment Closing Date, as ~~to which no opinion need be rendered). In rendering such opinion~~the case may be, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.and

Appears in 2 contracts

Samples: Underwriting Agreement (Nhancement Technologies Inc), Underwriting Agreement (Nhancement Technologies Inc)

Appears in 2 contracts

Samples: Distribution Agreement (Wells Fargo & Company/Mn), Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. ~~Xxxx~~XxXxxx, ~~Senior~~ Esq., Chief Securities Counsel of to the Company, or ~~another of the Company’s lawyers~~ other counsel satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) ~~The Company~~ Each of the Company, the Bank and BNY Mellon, National Association has been duly incorporated and is ~~a validly~~ an existing ~~corporation~~ corporation, banking corporation, and national bank, respectively (and, in the case of the Corporation, in good ~~standing~~ standing), under the laws of the State of Delaware~~. (B) The~~ , the State of New York, and the laws of the United States of America, respectively, and the Company has the corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Registration Statement and the Prospectus~~, and~~ . The Bank of New York Mellon is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact ~~the~~ business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of ~~Delaware~~New York. BNY Mellon, N.A. is a national banking association formed under the laws of the United States and duly authorized thereunder to transact business. (Cii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (~~assuming~~ iii) The Notes have been duly authorized and established by the Company in conformity with the applicable Indenture, and when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Agent, in accordance with this Agreement, have been obtained or made (except that such counsel need express no opinion with respect to state securities laws). (v) This Agreement has been duly authorized, executed and delivered by the ~~Trustee~~Company. (vi) ~~constitutes a valid~~ The execution and ~~legally binding agreement~~ delivery by the Company of the ~~Company~~Indentures did not, ~~enforceable against~~ and of this Agreement do not, and the ~~Company~~ completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the performance by the Company of its ~~terms~~obligations under the Indentures, this Agreement and such Note will not, violate the Company’s Restated Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as ~~enforcement thereof may be limited~~ performance by the Company of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ ~~rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law~~rights)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~. (Gvii) ~~The Notes have been duly authorized and~~Each part of the Registration Statement, when ~~issued~~such part became effective, ~~authenticated~~ and ~~delivered pursuant~~ the MTN Prospectus as of its issue date (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), appeared on their face to be appropriately responsive, in all material respects relevant to the ~~provisions~~ offering of ~~this Agreement~~ the Notes, to the requirements of the 1933 Act, the 1939 Act and the ~~Indenture against payment~~ applicable rules and regulations of the ~~consideration therefor~~SEC thereunder; further, ~~will constitute valid and legally binding obligations~~ nothing which came to such counsel’s attention in the course of such counsel’s review (as described in such opinion) has caused such counsel to believe that, insofar as relevant to the offering of the ~~Company~~Notes, ~~enforceable~~ any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the MTN Prospectus, as of its date or the date of such opinion (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental proceeding instituted or threatened against the Company or the Bank that would be required to be disclosed in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability the MTN Prospectus and is ~~considered in a proceeding in equity or at law)~~not so disclosed, and ~~except further~~ does not know of any documents that are required to be filed as ~~enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled~~ exhibits to the ~~benefits~~ Registration Statement and are not so filed or of any documents that are required to be summarized in the MTN Prospectus and are not so summarized. Such counsel may state that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the ~~Indenture. (H) The~~ statements contained in the ~~Final~~ Registration Statement or the MTN Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly~~ except for ~~use therein)~~ those made under the captions “Description of ~~Debt Securities~~Debt,” “Plan of Distribution (Conflicts of Interest),” “Description of Medium-Term Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution of Medium-Term Notes (Conflicts of Interest)” in the MTN Prospectus insofar as they relate to provisions of documents therein described and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ that such counsel does not express any opinion or belief as to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements ~~and~~ or other financial and statistical ~~information~~ data contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and~~ or the ~~Final~~ MTN Prospectus or ~~to be filed~~ as ~~exhibits~~ to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 ~~included or incorporated by reference therein, as to which no opinion need be rendered)~~of each Trustee. In ~~rendering~~ providing such opinion, such counsel may ~~rely (A~~assume, in connection with the opinion set forth in paragraph 5(a)(1)(iii) as above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to ~~matters involving~~ each Note, that such Note will conform to the ~~application~~ form of ~~laws~~ Note examined by such counsel. Such counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or breach of any ~~jurisdiction other than~~ agreement or instrument then binding on the Company. Such counsel may state in rendering the opinion set forth in paragraph 5(a)(1)(iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of ~~Minnesota or the United States, to the extent deemed proper and specified in~~ New York rendering a judgment on such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers Note would be required under Section 27 of the ~~Company~~ New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated, and ~~its subsidiaries and public officials~~such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.

Appears in 2 contracts

Samples: Distribution Agreement (Bank of New York Mellon Corp), Distribution Agreement (Bank of New York Mellon Corp)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 2 contracts

Samples: Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Sidley Austin LLP, ~~Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and is ~~a validly existing corporation~~ in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a whole. (Diii) ~~All~~ Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors’ qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law) including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus under the captions “Description of Debt Securities” and “Description of the Notes”. (vi) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or~~ moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting ~~enforcement of~~ creditors’ rights generally ~~or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) including concepts of commercial reasonableness, good faith and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay~~ fair dealing and the possible unavailability of specific performance or ~~prohibit~~ injunctive relief; and the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~1939 Act. (Gvii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the ~~Company. (N) To~~ Company or any Applicable Laws or any order known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including the SEC is required for the consummation by~~ having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. As used herein, the term “Applicable Laws” means those state laws of the State of New York and federal laws of the United States that, in such counsel’s experience and without independent investigation, are normally applicable to transactions of the type contemplated by this ~~Agreement, except such as may be required under~~ Agreement (provided that the ~~Blue Sky~~ term “Applicable Laws” shall not include federal or state securities or blue sky laws of relating to disclosure or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA in connection with~~ thereunder (including, without limitation, the ~~purchase and distribution of~~ 1933 Act, the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange 1934 Act and the ~~Exchange~~ 1939 Act and the respective regulations ~~thereunder (other than financial statements and other financial and statistical information included therein~~thereunder), ~~other than statements furnished in writing to the Company by~~ any antifraud or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered~~similar laws). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 2 contracts

Samples: Distribution Agreement (Colgate Palmolive Co), Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~[___________], ~~Senior Counsel of~~ Esq., counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to the ~~Underwriters,~~ Agents a letter addressed to the Agents and dated the ~~Closing Date~~ date hereof stating his opinion to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware. (B) The~~ Iowa; and the Company ~~has the corporate power and authority to own~~is a subsidiary of MidAmerican Energy Holdings Company, ~~lease and operate its properties and to conduct its business as described in the Final Prospectus~~an Iowa corporation, ~~and is duly registered as a financial holding company and a bank holding company~~ both of which are exempt from regulation under the ~~Bank~~ Public Utility Holding Company Act of ~~1956~~1935, as amended~~; Xxxxx Fargo Bank~~, ~~National Association (“Xxxxx Fargo Bank”~~except under Section 9(a)(2) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.thereof; (Cii) ~~Each of the Company~~ this Agreement and ~~the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each ~~jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business~~Terms Agreement, ~~except where the failure to so qualify would not have any material adverse effect upon the business~~if any, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes~~ is a valid and ~~legally~~ binding agreement of ~~the Company, enforceable against~~ the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by applicable law and except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors' rights generally and general principles of equity; (iii) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action, has been duly and validly executed and delivered and is a valid instrument legally binding on the Company, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to an Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform in all material respects with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ the orders of the FERC and the ICC referred to in Section 2(a)(xi) hereof pertaining to the Notes have been duly entered and, to the best of the knowledge of such counsel, are still in force and effect; and no further approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement and any applicable Terms Agreement; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1933 Act Regulations and Sections 305(a)(2) and 305(c) of the ~~regulations under each of those Acts.~~1939 Act (except that such counsel need express no opinion as to the financial statements and financial or statistical data contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or Terms Agreements nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ herein or therein contemplated, nor compliance with the terms and provisions hereof or thereof, will conflict ~~with~~ with, or ~~constitute~~ violate or result in a breach of, ~~or default under~~any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the Company, conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation or the bylaws of the Company or ~~any Significant Subsidiary~~ of any ~~court, regulatory body, administrative agency, governmental body,~~ material agreement or ~~arbitrator having jurisdiction over~~ instrument known to such counsel to which the Company or any ~~Significant Subsidiary; nor will such action~~ of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encumbrance of any nature whatsoever upon any of the ~~provisions~~ material properties or assets of the ~~Restated Certificate of Incorporation~~ Company or ~~Bylaws of the Company.~~any such subsidiary; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(v) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (~~other than~~ except that such counsel does not need to express any opinion as to the financial statements and financial or statistical data contained therein); (xiii) the statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by him and, as to matters of law and legal conclusion, are correct; (xiv) the Company is a public utility authorized by its Restated Articles of Incorporation to carry on the businesses in which it is engaged, as set forth in the Prospectus; the Company has the legal right to function and operate as an electric public utility company in the States of Iowa, Illinois and South Dakota, and as a gas public utility company in the States of Iowa, Illinois, South Dakota and Nebraska; and the franchises and permits of the Company are valid and subsisting and authorize the Company to carry on the utility businesses in which it is engaged in the communities and territory covered by such franchises and permits; (xv) the descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings and contracts and other ~~financial~~ documents are accurate and ~~statistical~~ fairly present the information ~~included therein~~required to be presented; and (xvi) except as set forth in the Prospectus, (A) there are no pending legal proceedings to which the Company is a party or in which any of its property is the subject which are material to the Company, other than ~~statements furnished in writing~~ ordinary routine legal proceedings incident to the business in which the Company ~~by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~is engaged, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as there are no material pending administrative or judicial proceedings to ~~matters~~ which the Company is a party or in which any of ~~fact~~its property is the subject arising under any federal, state or local provisions regulating the discharge of materials into the environment or otherwise relating to the protection of the environment, and, to the ~~extent deemed proper, on certificates of responsible officers~~ best of the knowledge of said counsel, no such proceedings are threatened by governmental authorities; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead him to believe that the Registration Statement, at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and ~~its subsidiaries~~ at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and ~~public officials~~at the Settlement Date with respect thereto, as the case may be, contains or contained an 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 not misleading or that the Prospectus as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 2 contracts

Samples: Distribution Agreement (Midamerican Energy Co), Distribution Agreement (Midamerican Energy Co)

Appears in 2 contracts

Samples: Distribution Agreement (Wells Fargo & Company/Mn), Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx, Senior~~ Xxxxxxx shall have received at the Land Closing from the General Counsel or the Corporation Counsel of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters~~a favorable opinion, dated the date of the Land Closing ~~Date~~ and addressed to Xxxxxxx, satisfactory in substance and form to Xxxxxxx, and its special counsel, to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a ~~validly~~ corporation duly organized and existing ~~corporation~~ in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest Massachusetts and, to at the ~~knowledge~~ times of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, ~~nor~~ the ~~consummation~~ Instruments of Conveyance and the Lease, respectively, the Company had and has good corporate power and authority to execute and deliver the same and the Lease Modification, and to incur and perform all obligations provided for it herein and therein, and such corporate power and authority are still in effect. (b) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, has been duly executed and delivered by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition duly authorized officers of the Company and ~~its subsidiaries~~constitutes a legal, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws valid and binding obligation of the Company. (Nc) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required~~ The Instruments of Conveyance to be ~~described~~ delivered at the Land Closing are in proper form to convey the title they purport to convey, conform to the provisions of this Agreement and have been duly recorded or ~~referred~~ filed for record in such manner and in such places (specifying the same) as are required by law or otherwise in order to effect the transfer of record title to the Property to Xxxxxxx and in order to establish, preserve and protect such title in Xxxxxxx. All documentary, stamp and other taxes and fees payable in connection with the ~~Registration Statement~~ execution, delivery and recordation of the Instruments of Conveyance have been paid. (d) The Instruments of Conveyance to be delivered at the Land Closing and the ~~Final Prospectus or to be filed as exhibits to~~ Lease have been duly authorized by all necessary corporate action on the ~~Registration Statement other than those described or referred to therein or filed or incorporated~~ part of the Company, have been duly executed and delivered by ~~reference as exhibits thereto~~the duly authorized officers of the Company and constitute legal, valid, binding obligations of the Company, respectively, and the ~~descriptions thereof or references thereto are correct~~Lease is enforceable, subject to laws of general application affecting the rights and remedies of landlords and creditors. (Oe) ~~No consent~~There is no violation or note, ~~approval, authorization, order~~ notice or ~~decree~~ other record of violation of any ~~court~~ zoning, building or ~~governmental agency~~ other statute, ordinance, regulation or ~~body including~~ restriction concerning the ~~SEC is required for~~ Property, or the ~~consummation by the Company of the transactions~~ use thereof contemplated by this Agreement, ~~except such as may be required under the Blue Sky laws~~ of any governmental authority having jurisdiction. All such certificates, permits and licenses from each governmental authority having jurisdiction ~~or regulations adopted by FINRA in connection with~~ as are necessary to allow the ~~purchase and distribution~~ occupancy of the ~~Notes by~~ Land and to permit the ~~Underwriters. (P) Each document filed pursuant to~~ use thereof for the ~~Exchange Act~~ construction and ~~incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act~~ contemplated use and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf occupancy of the ~~Underwriters~~ New Buildings referred to in Paragraph 10 have been obtained and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, are currently in effect to the extent ~~deemed proper and specified in~~ such ~~opinion, upon~~ are obtainable at the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers time of the ~~Company and its subsidiaries and public officials~~Land Closing.

Appears in 1 contract

Samples: Purchase, Lease and Reimbursement Agreement (New England Electric System)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~Each Investor shall have received from Davix & Xompany, ~~Senior Counsel of~~ counsel for the Company, ~~or another~~ an opinion, dated as of the ~~Company’s lawyers~~ Closing, in form and substance satisfactory to counsel to the ~~Underwriters~~Investors, ~~dated the Closing Date~~ to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a company-duly organized, validly existing ~~corporation~~ and in good standing (except for the residency requirement as disclosed in Schedule B hereto) in respect of the filing of annual reports with the Registrar of Companies under the laws of British Columbia, and the ~~State of Delaware. (B) The~~ Company has the requisite corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business. (b) The Company has the capacity to do business ~~as described~~ in any state, province or jurisdiction of the ~~Final Prospectus~~United States and Canada where it seeks to do business, subject to complying with any registration or filing requirements and subject to the availability for use of its corporate name in any such state, province or jurisdiction, and is ~~duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956~~so qualified in any state, ~~as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”)~~ province or jurisdiction in which it is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delawarecurrently doing business. (Cc) ~~Each of~~ The Company has the ~~Company~~ requisite corporate power and authority to execute, deliver and perform this Agreement, the Investors' Rights Agreement and the ~~Significant Subsidiaries is duly qualified to do business~~ Shareholders Agreement. The Agreement, the Investors' Rights Agreement and ~~is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary Shareholders Agreement have been duly and validly authorized ~~and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned~~ by the ~~Company free and clear of any perfected security interest and~~Company, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly authorized,~~ executed and delivered by ~~the Company. (F) The Indenture has been duly authorized, executed and delivered by~~ an authorized officer of the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the ~~Indenture against payment of the consideration therefor~~Shareholders Agreement constitute legal, ~~will constitute~~ valid and ~~legally~~ binding obligations of the Company. Subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors, the Agreement and the Shareholders Agreement are enforceable ~~against~~ according to their respective terms, except that no opinion need be given as to the availability of equitable remedies. (d) The capitalization of the Company is as follows: (i) Preferred Shares. 11,946,474 Preferred Shares (the "Preferred Shares"), of which 2,000,000 shares have been designated Class A Preferred Shares, all of which are recorded in the books of the Company as having been duly authorized, issued and delivered and as being validly outstanding, fully paid and nonassessable, 2,000,000 shares have been designated Class B Preferred Shares, all of which are recorded in the books of the Company as having been duly authorized, issued and delivered and as being validly outstanding, fully paid and nonassessable, 2,658,228 shares have been designated Class D Preferred Shares, all of which are recorded in the books of the Company as having been duly authorized, issued and delivered and as being validly outstanding, fully paid and nonassessable, 4,000,000 shares have been designated Class E Preferred Shares, all of which are recorded in the books of the Company as having been duly authorized, issued and delivered and as being validly outstanding, fully paid and nonassessable, and 1,288,246 shares have been designated Class F Preferred Shares and are to be sold pursuant to this Agreement. The Class F Preferred Shares, when issued, sold and delivered in accordance with ~~their terms~~the terms of this Agreement, will be validly outstanding, fully paid and nonassessable, approved by all requisite corporate action, and issued in compliance with all applicable Canadian federal and provincial laws regarding the sale of securities, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to that the Company ~~by or on behalf of an Underwriter expressly for use therein) under~~ must file, within the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to thereinprescribed time period, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as~~ issue of any Class F Preferred Shares to which ~~no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under~~ the Securities Act ~~and~~(British Columbia) applies, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made a report in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form ~~T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects~~ 20 with the ~~requirements of~~ British Columbia Securities Commission together with the ~~Securities Act, the Trust Indenture Act~~ appropriate fees and ~~the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are~~ a fee checklist form and may be required to ~~be disclosed in~~ file with the ~~Final Prospectus, other than those disclosed therein. (M) Neither~~ British Columbia Securities Commission the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in ~~the Registration Statement~~ Section 3.3. The respective rights, privileges and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company preferences of the ~~transactions contemplated by~~ Class A Prefer-red Shares, Class B Preferred Shares, Class D Preferred Shares, Class E Preferred Shares and Class F Preferred Shares are as stated in the Company's Altered Memorandum and Articles attached as Exhibit A to this Agreement~~, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution~~ . 12,051,737 of the ~~Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act~~ authorized but unissued Class A Common Shares have been duly and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel validly reserved for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.issuance

Appears in 1 contract

Samples: Class F Preferred Share Subscription and Purchase Agreement (Pivotal Corp)

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that:~~ (Aa) The Company has been duly ~~incorporated and~~ incorporated, is a validly existing as a corporation in good standing under the laws of ~~the State~~ its jurisdiction of ~~Delaware. (B) The Company~~ incorporation and has the corporate power and authority required to carry on its business and to own, lease and operate its properties ~~and to conduct its business~~ as described in the ~~Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company~~ Exchange Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of DelawareReports. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Db) All of the outstanding shares of ~~capital stock of each Significant Subsidiary~~ Common Stock have been duly authorized and validly ~~authorized and~~ issued and are fully paid, non-assessable and not subject to any preemptive or similar rights. (c) The Shares initially issuable upon conversion of the Convertible Note have been duly authorized and reserved for issuance and when issued and delivered upon conversion in accordance with the provisions of the Convertible Note, will have been validly issued and will be fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable, and ~~are directly or indirectly owned by~~ the ~~Company free and clear of any perfected security interest and, to the knowledge~~ issuance of such ~~counsel,~~ Shares is not subject to any ~~other security interests, claims, liens~~ preemptive or ~~encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~similar rights. (Ed) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fe) The ~~Indenture~~ Convertible Note has been duly authorized, executed, issued and delivered, and constitutes the valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (f) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement~~ creditors' rights and to general equity principles; provided that such counsel need express no opinion with respect to Section 6 of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statessuch Agreement. (Gg) The ~~Notes have been duly~~ authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations capital stock of the Company, ~~enforceable against~~ including the ~~Company in accordance with their terms~~Common Stock, ~~except~~ conforms as ~~enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled legal matters to the ~~benefits~~ description thereof contained in the Annex III of ~~the Indenture~~this Agreement. (Hh) ~~The statements~~ Except (i) as required pursuant to the Registration Rights Agreement, or (ii) for the disclosure required to be included in the ~~Final Prospectus (other than statements furnished in writing~~ Company's next Quarterly Report on Form 10-Q, when filed, pursuant to ~~the Company by or on behalf~~ Item 2(c) of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amendedForm 10-Q, or ~~any notice under Rule 401(g)(2~~(iii) ~~that would prevent its use, has been issued under the Securities Act~~ Federal and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof state securities or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference thereinBlue Sky laws, as to which no opinion ~~need be rendered) complied as to form in all material respects with~~ is expressed, no consent, approval, authorization or order of, or filing or registration with, any court or New York, Delaware or Federal governmental agency or body is required for the ~~requirements of the Securities Act~~execution, ~~the Trust Indenture Act~~ delivery and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery performance of this Agreement, ~~nor~~ the ~~consummation~~ Registration Rights Agreement and the Convertible Note by the Company and the consummation of the transactions contemplated by this Agreement and thereby. (i) The execution, delivery and performance of this Agreement, the ~~Notes nor~~ Registration Rights Agreement and the ~~incurrence~~ Convertible Note by the Company, compliance by the Company with all the provisions hereof and thereof and the consummation of the ~~obligations therein contemplated,~~ transactions contemplated hereby and thereby will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any material agreement, indenture or other ~~agreement or~~ instrument to which the Company ~~or any Significant Subsidiary~~ is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to by which the Company or ~~any Significant Subsidiary is a party or~~ its properties are bound~~, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole~~, or violate or conflict with any ~~order~~ New York, Delaware corporate of Federal law or administrative regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than ~~financial statements~~ Federal and ~~other financial and statistical information included therein, other than statements furnished in writing to the Company by~~ state securities or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~Blue Sky laws, as to which no opinion ~~need be rendered~~is expressed)~~. In rendering such opinion~~, or court decree applicable to the Company or its properties of which such counsel ~~may rely~~ is aware, in any case which is reasonably likely to have a Material Adverse Effect. (Aj) as The Company is not an open-end investment company, unit investment trust or face-amount certificate company that is or is required to ~~matters involving the application~~ be registered under Section 8 of ~~laws of any jurisdiction other than the State of Minnesota or~~ the United ~~States~~States Investment Company Act of 1940, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as ~~to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.~~amended. ANNEX III

Appears in 1 contract

Samples: Convertible Note Purchase Agreement (Columbia Laboratories Inc)

Opinion of Company Counsel. ~~The~~ On each of the Closing Date and the Option Closing Date, if any, the Representative shall have received the favorable opinion of ~~Xxxxxxxx X. Xxxx~~Shaw Xxxtxxx, ~~Senior Counsel of~~ xxunsel to the Company~~, or another of the Company’s lawyers satisfactory to the Underwriters~~, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Representative and in form and substance satisfactory to Grauxxxx Xxxlen & Millxx, xxunsel to the Representative, to the effect that: (Ai) The Company ~~has been duly incorporated and~~ is a corporation validly existing ~~corporation~~ and in good standing under the laws of the State of Delaware. The Company is duly qualified and in good standing in the Commonwealth of Virginia and the State of New Hampshire. (Bii) The Company has ~~the~~ all corporate power and authority to ~~own~~enter into this Agreement, ~~lease~~ the Representative's Purchase Option and ~~operate its properties~~ the Warrant Agreement and to ~~conduct~~ carry out its ~~business~~ obligations hereunder and thereunder. No consents, approvals, authorizations or orders of, and no filings with, any court or governmental agency or body, are required for the Company to execute, deliver and perform its obligations under this Agreement, or to authorize, issue, sell and deliver the Securities, and to consummate the transactions and agreements contemplated by this Agreement, the Representative's Purchase Option and the Warrant Agreement, except for those authorizations, approvals, consents, orders and filings as ~~described~~ have been made or obtained and are in full force and effect and except for such authorizations, approvals, consents, orders and filings under the Act and the Blue Sky laws of any state or jurisdiction in the ~~Final Prospectus~~United States in which the Units may be offered, as to which we express no opinion. (iii) All issued and outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. The authorized, issued and outstanding capital stock of the Company is ~~duly registered~~ as ~~a financial holding company and a bank holding company~~ set forth in the Prospectus in the column titled "Actual" under the ~~Bank Holding~~ caption "Capitalization" as of the date stated therein, except 24 that the Company also has authorized 500,000 shares of Series A Convertible Preferred Stock, none of which is issued and outstanding as of the date of this opinion. To such counsel's knowledge, all of the issued and outstanding shares of Common Stock were issued in compliance with the registration requirements of the Securities Act and the rules and regulations promulgated thereunder and the applicable state securities or Blue Sky laws or pursuant to an exemption from such registration requirements. None of ~~1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized~~ the holders of the Common Stock are subject to ~~transact the business of banking~~ personal liability under the ~~National Bank Act~~ certificate of ~~1864~~incorporation or bylaws of the Company or the General Corporation Law of the State of Delaware solely by reason of being such a holder. None of the issued and outstanding shares of Common Stock were issued in violation of statutory preemptive rights of any holders of such securities of the Company or, ~~as amended;~~ to such counsel's knowledge, were issued in violation of similar contractual rights granted by the Company. All of the issued and ~~WFC Holdings Corporation~~ outstanding options and warrants to purchase shares of Common Stock were validly authorized by the Board of Directors and constitute valid and binding obligations of the Company enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance and other laws of general applicability relating to or affecting creditors' rights and to general principles of equity. (~~“WFC Holdings,”~~ iv) The Securities have been duly authorized for issuance and ~~together~~ sale by the Company by all requisite corporate action by the Company. When issued and delivered by the Company in accordance with ~~Xxxxx Fargo Bank~~the terms of this Agreement, against payment of the consideration set forth herein, the ~~“Significant Subsidiaries”) is a duly organized~~ Securities will be fully paid and ~~validly existing corporation in good standing~~ non-assessable. The holders of the Securities will not be subject to personal liability under the ~~laws~~ Certificate of Incorporation or Bylaws of the Company or the General Corporation Law of the State of Delaware solely 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. The forms of certificate used to evidence the Units, Common Stock and Warrants comply with the applicable requirements of the Certificate of Incorporation and Bylaws of the Company and the General Corporation Law of the State of Delaware. (Cv) ~~Each~~ To the best of such counsel's knowledge, after due inquiry, except as fully disclosed in the Prospectus, no holders of any securities of the Company ~~and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns~~ or ~~leases~~ of any ~~material properties~~ options, warrants or ~~conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties~~ other securities of the Company ~~and its subsidiaries~~exercisable for or convertible or exchangeable into securities of the Company (i) 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 filed by the Company, ~~taken~~ or (ii) have rights to have the exercise or conversion prices of their securities lowered and/or the number of securities that they may purchase increased as a ~~whole~~result of the issuance by the Company of securities for a price less than such exercise or conversion price. (Dvi) ~~All~~ To the best of such counsel's knowledge, after due inquiry, the ~~outstanding shares of capital stock of~~ Securities have been approved for quotation on the Nasdaq SmallCap Market. (vii) This Agreement, the Representative's Purchase Option and the Warrant Agreement have each ~~Significant Subsidiary have~~ been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, when executed and delivered by the 25 Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and ~~legally~~ binding obligations of the Company, enforceable against the Company in accordance with their respective terms, ~~except as enforcement thereof may be limited by~~ subject to, in each case: (i) bankruptcy, insolvency, reorganization, ~~moratorium or~~ fraudulent conveyance and other laws of general applicability relating to or affecting ~~enforcement~~ creditors' rights and to general principles of ~~creditors’ rights generally or by general equity principles~~ equity, (~~regardless of whether enforceability is considered~~ ii) the fact that the indemnification and contribution provisions set forth in ~~a proceeding in equity or at law)~~this Agreement, the Representative's Purchase Option and ~~except further as enforcement thereof~~ the Warrant Agreement may be limited under federal and applicable state securities laws and by ~~governmental authority to limit, delay or prohibit the making of payments outside the United States~~public policy, and ~~each holder~~ (iii) the fact that the remedy of ~~Notes will~~ specific performance and injunctive and other forms of equitable relief may be ~~entitled~~ subject to equitable defenses and to the ~~benefits~~ discretion of the ~~Indenture~~court before which any proceeding therefor may be brought. (Hviii) The ~~statements in the Final Prospectus (other than statements furnished in writing to~~ execution, delivery and performance by the Company ~~by or on behalf~~ of ~~an Underwriter expressly for use therein) under~~ this Agreement, the ~~captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes”~~ Representative's Purchase Option and ~~“Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein~~the Warrant Agreement, ~~are accurate summaries of such provisions or laws or~~ the issuance and sale of the ~~sources from which such summaries were derived~~ Securities, the performance by the Company of its obligations hereunder and thereunder (other than the ~~foreign selling restrictions set forth~~ performance by the Company of its obligations under the ~~captions “Plan~~ indemnification and contribution provisions of ~~Distribution (Conflicts of Interest)”~~ this Agreement, the Representative's Purchase Option and ~~“Underwriting (Conflicts of Interest)” and statements with respect to~~ the ~~Financial Industry Regulatory Authority~~Warrant Agreement, ~~Inc. (“FINRA”)~~ as to which no opinion need be rendered), do not and will not, (a) result in any violation of the provisions of the certificate of incorporation or the bylaws of the Company, (b) to such counsel's knowledge, will not constitute a breach of, or a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any material contracts, agreements, instruments, leases or licenses to which the Company is a party or by which the Company or any of its properties or assets may be bound, or (c) to such counsel's knowledge, will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company. (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (Kix) The Registration Statement, ~~the Final~~ each Preliminary Prospectus and ~~each amendment thereof~~ the Prospectus and any post-effective amendments or ~~supplement~~ supplements thereto ~~as of their respective effective or issue dates~~ (other than the financial statements and ~~other financial and statistical information contained~~ supporting schedules included therein, ~~other than~~ or the financial statements ~~furnished~~ and supporting schedules included in ~~writing~~ exhibits to or excluded from the ~~Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~Registration Statement, as to which no opinion need be rendered) ~~complied~~ comply as to form in all material respects with the applicable requirements of the ~~Securities Act, the Trust Indenture~~ Act and ~~the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal~~ Regulations. The Securities and all other securities issued or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation issuable by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit conform in all respects to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to description thereof contained in the Registration Statement and the ~~Final~~ Prospectus. The statements in the Prospectus under "Description of Securities" and "Shares Eligible for Future Sale," have been reviewed by such counsel, and insofar as such statements constitute matters of law, summaries of legal matters, of the Company's Certificate of Incorporation or of Bylaw provisions, or legal conclusions, have been reviewed by such counsel and fairly present and summarize, in all material respects, the matters referred to therein. No statute or regulation or legal or governmental proceeding required to be described in the Prospectus is not described as required. To such counsel's knowledge, there are no contracts or documents to which the Company is a party required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement ~~other than those~~ pursuant to the Act or the Regulations that are not so described or ~~referred to therein or~~ filed ~~or incorporated by reference~~ as ~~exhibits thereto, and the descriptions thereof or references thereto are correct~~required. (Ox) ~~No consent~~The Registration Statement was declared effective under the Act on June __, ~~approval~~1999, ~~authorization~~and, to the best of such counsel's knowledge, no stop order suspending the effectiveness (xi) To such counsel's knowledge, the Company is not (i) in violation of its Certificate of Incorporation or Bylaws or any law applicable to the Company, or any administrative regulation or administrative or court decree known to such counsel and applicable to the Company, or (ii) in default in the performance or observance of any ~~court~~ obligation, agreement, covenant or ~~governmental agency or body including the SEC is required for the consummation by~~ condition contain in any material contracts, agreements, instruments, leases and licenses to which the Company is a party or by which the Company or any of ~~the transactions contemplated by this Agreement~~its properties or assets may be bound, except in each such case for such violations or defaults as ~~may be required under~~ would not, singly or in the ~~Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ aggregate, result in ~~connection with the purchase and distribution of the Notes by the Underwriters~~a Material Adverse Effect. (Pxii) ~~Each document filed pursuant~~ 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 pending or threatened against the Company that might reasonably be expected to have a Material Adverse Effect. (xiii) To the best of such counsel's knowledge, 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 threatened that challenges the exclusive rights of the Company with respect to any Intangibles used in the conduct of 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, the Company's current products, services and processes do not infringe on any intangible held by third persons. The Company's Intangibles that have been registered in the United States Patent and Trademark Office have been fully maintained and are in full force and effect. (xiv) The statements in the Prospectus under the captions "Risk Factors-- Uncertain Protection of Intellectual Property" and "Business-- Intellectual Property" 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 pertaining to intellectual property, do not contain any untrue statement of a material fact or omit 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. No statute or regulation or legal or governmental proceeding pertaining to intellectual property required to be described in the Registration Statement is not described as required. Counsel to the ~~Exchange Act and incorporated by reference~~ Company will also deliver the following statement to the Representative with the foregoing opinions: On the basis of such counsel's participation, as counsel to the Company, with representatives of the Company in the ~~Final~~ preparation of the Registration Statement and the Prospectus ~~complied when filed~~ and such counsel's participation with representatives of the 27 Company and the Underwriters at meetings in which the contents of the Registration Statement and the Prospectus and related matters were discussed and the examination by such counsel of such corporate records, statutes, documents and questions of law as such counsel deemed necessary, but without independent verification by such counsel of the accuracy, completeness and fairness of the statements contained in the Registration Statement and the Prospectus except as specifically set forth in such counsel's opinion, and without commenting as to ~~form in all material respects with~~ the ~~Exchange Act and the Exchange Act regulations thereunder (other than~~ financial statements and the notes thereto and the schedules and other financial ~~and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1~~ data included or incorporated by reference therein, nothing has come to such counsel's attention that would lead such counsel to believe that the Registration Statement or the Prospectus, or any amendment or supplement thereto (except for the financial statements and the notes thereto and the schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which no ~~opinion~~ statement need be rendered)~~. In rendering such opinion~~, ~~such counsel may rely (A)~~ as ~~to matters involving the application~~ of ~~laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper~~ its date and ~~specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B)~~ as ~~to matters of fact, to the extent deemed proper, on certificates of responsible officers~~ of the ~~Company and its subsidiaries and public officials~~Closing Date, contained or contains any untrue statement of material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Underwriting Agreement (Objective Communications Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing ~~Date~~ Date, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series DD Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Act. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included~~ Representative or ~~incorporated~~ directly by ~~reference therein~~any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need ~~be rendered~~express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxx, Esq., Senior Counsel of to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) ~~The~~ Each of the Company and the Bank has been duly incorporated and is ~~a validly~~ an existing corporation or banking corporation, respectively, in good standing under the laws of the State of New York or Delaware~~. (B) The~~ , as the case may be, and the Company has the corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final Prospectus, and is duly registered~~ Prospectus as ~~a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as~~ supplemented or amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Cii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (~~assuming~~ iii) The Notes have been duly authorized and established in conformity with the applicable Indenture, and when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with such Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Agent, in accordance with this Agreement, have been obtained or made (except that such counsel need express no opinion with respect to state securities laws). (v) This Agreement has been duly authorized, executed and delivered by the ~~Trustee~~Company. (vi) ~~constitutes a valid~~ The execution and ~~legally binding agreement~~ delivery by the Company of the ~~Company~~Indentures and this Agreement do not, ~~enforceable against~~ and the ~~Company~~ completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the performance by the Company of its ~~terms~~obligations under the Indentures, this Agreement and such Note will not violate the Company's Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as ~~enforcement thereof may be limited~~ performance by the Company of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered' rights). (Ivii) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness Each part of the Registration Statement, ~~as amended~~when such part became effective, ~~or any notice under Rule 401(g)(2) that would prevent its use, has been issued under~~ and the ~~Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final~~ Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference data therein, as to which such counsel need express no ~~opinion need~~ opinion) appeared on their face to be ~~rendered) complied as to form~~ appropriately responsive, in all material respects ~~with~~ relevant to the offering of the Notes, to the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts. (L) To~~ the SEC thereunder; further, nothing which came to such counsel~~’s knowledge~~'s attention in the course of such counsel's review (as described in such opinion) has caused such counsel to believe that, ~~there are~~ insofar as relevant to the offering of the Notes, any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no ~~legal~~ opinion) contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental ~~proceedings pending~~ proceeding instituted or threatened ~~which are~~ against the Company or the Bank that would be required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract Prospectus and is ~~set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~not so disclosed, ~~or any other indenture or material agreement or instrument known to such counsel~~ and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary does not know of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there documents that are ~~no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents~~ required ~~to be described or referred to in the Registration Statement and the Final Prospectus or~~ to be filed as exhibits to the Registration Statement ~~other than those described or referred to therein or~~ and are not so filed or ~~incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree~~ of any ~~court or governmental agency or body including~~ documents that are required to be summarized in the ~~SEC is required~~ Prospectus and are not so summarized. Such counsel may state that such counsel does not assume any responsibility for the ~~consummation by the Company~~ accuracy, completeness or fairness of the ~~transactions contemplated by this Agreement,~~ statements contained in the Registration Statement or the Prospectus except ~~such as may be required~~ for those made under the ~~Blue Sky laws~~ captions "Description of Senior Debt Securities and Senior Subordinated Debt Securities" and "Plan of Distribution" in the Prospectus and under the captions "Description of Medium-Term Notes" and "Plan of Distribution of Medium-Term Notes" in the Prospectus Supplement insofar as they relate to provisions of documents therein described and that such counsel does not express any ~~jurisdiction~~ opinion or ~~regulations adopted by FINRA~~ belief as to the financial statements or other financial data contained in ~~connection with~~ the ~~purchase and distribution~~ Registration Statement or the Prospectus or as to the statement of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf eligibility of the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)~~Trustees. In ~~rendering~~ providing such opinion, such counsel may ~~rely~~ assume, in connection with the opinion set forth in paragraph (Aiii) as above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to ~~matters involving~~ each Note, that such Note will conform to the ~~application~~ draft form of ~~laws~~ the Notes examined by such counsel. Such counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or a breach of any ~~jurisdiction other than~~ agreement or instrument then binding upon the Company. Such counsel may state in rendering the opinion set forth in paragraph (iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of ~~Minnesota or the United States, to the extent deemed proper and specified in~~ New York rendering a judgment on such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers Note would be required under Section 27 of the ~~Company~~ New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated, and ~~its subsidiaries and public officials~~such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.

Appears in 1 contract

Samples: Distribution Agreement (Bank of New York Co Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~--------------------------- Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary had been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors' qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances.~~ . (iv) The ~~Company’s~~ Company has an authorized ~~equity~~ capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fvi) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented under the heading "Description of Debt Securities" and "Description of Notes". (vii) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding ~~agreement~~ instrument of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, moratorium or and other laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law), ; and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~1939 Act. (Gviii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oix) No consent, approval, authorization, ~~order~~ order, registration or ~~decree~~ qualification of or with any such court or governmental agency or body ~~including the SEC~~ is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any Terms Agreement or the Indenture, except such consents, approvals, authorizations, registrations or qualifications as may be required under the 1933 Act and the 1939 Act and those under state securities, Blue Sky ~~laws of any jurisdiction~~ or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~foreign laws. (Px) ~~Each document filed pursuant~~ To the best of such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which are probable to result in an adverse determination and which, if determined adversely to the ~~Exchange Act and~~ Company or any of its subsidiaries, would have a material adverse effect on the consolidated financial position or the annual pre-tax consolidated results of operations of the Company; and, to the best of such counsel's knowledge, without special inquiry, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (xi) To the best of such counsel's knowledge, all contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be incorporated by reference into the Prospectus or described in the ~~Final~~ Registration Statement or the Prospectus ~~complied~~ have been filed or incorporated by reference or described as required. (xii) The Registration Statement has been declared effective under the 1933 Act and, to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (xiii) The Registration Statement and the Prospectus, or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and related schedules therein and other financial data or the Statement of Eligibility on Form T-1 of the Trustee under the Indenture, as to which such counsel need express no opinion), when ~~filed~~ the Registration Statement became effective complied, and as of the date hereof comply, as to form in all material respects with the ~~Exchange~~ requirements of the 1933 Act and the ~~Exchange~~ 1939 Act and the rules and regulations ~~thereunder~~ of the Commission thereunder. (xiv) The information in the Prospectus under the caption "Description of Notes", "Description of Debt Securities", and information, if any, in the Prospectus under the caption "United States Taxation" (or similar caption), to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel or by attorneys under the supervision of such counsel and is correct in all material respects. (xv) The documents incorporated by reference into the Registration Statement and the Prospectus or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and schedules therein and other financial ~~and statistical information included therein, other than statements furnished in writing to~~ data or the ~~Company by or on behalf of the Underwriters and other than the Statements~~ Statement of Eligibility on Form T-1 ~~included or incorporated by reference therein~~of the Trustee under the Indenture, as to which such counsel need express no ~~opinion need be rendered~~opinion), at the time they were filed, complied, and as of the date hereof comply, as to form in all material respects with the requirements of the 1933 Act and the 1934 Act and the rules and regulations of the Commission thereunder. In ~~rendering~~ giving such ~~opinion,~~ opinion such counsel ~~may rely (A)~~ shall also state that in the course of his duties as General Counsel of the Company he consults with other officers of the Company as to ~~matters involving~~ ongoing matters, and he or an attorney under his supervision has reviewed the ~~application~~ Registration Statement and the Prospectus and has participated in the preparation of ~~laws~~ documents incorporated by reference therein and, although such counsel has not made any other specific inquiry for the purpose of rendering this opinion and 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, no facts have come to such counsel's attention that lead it to believe that the Registration Statement at the time it became effective, or any further amendment thereto (including the filing of an Annual Report on Form 10-K with the Commission), as of its effective date, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date of any ~~jurisdiction other than~~ Terms Agreement and at the ~~State~~ Settlement Date with respect thereto, as the case may be, contains or contained an untrue statement of ~~Minnesota~~ a material fact or omits or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, or any further amendment or supplement thereto, as of its date, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or that, as of the date hereof, either the Registration Statement or the ~~United States,~~ Prospectus or any further amendment or supplement thereto made by the Company prior to the ~~extent deemed proper~~ date hereof contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been required to and ~~specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters~~ does not express any comment with respect to the ~~transactions contemplated hereby;~~ financial statements and ~~(B) as~~ schedules and other financial data included in the Registration Statement or Prospectus or the Statement of Eligibility on Form T-1 of the Trustee under the Indenture). In giving the opinion required by this Section 5(b)(1), such counsel shall be entitled to rely upon opinions of local counsel and tax counsel and, in respect of matters of fact, ~~to the extent deemed proper, on~~ upon certificates of ~~responsible~~ officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Agents and ~~its subsidiaries~~ he are justified in relying upon such opinions and ~~public officials~~certificates.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~On the First Closing Date, ~~Senior Counsel~~ you shall have received the opinion, dated as of the ~~Company~~First Closing Date, ~~or another~~ of ~~the Company’s lawyers~~ Company Counsel, in form and substance satisfactory to the Underwriters' Counsel, ~~dated the Closing Date~~ substantially to the effect that: (Ai) ~~The~~ the Company ~~has~~ and the Subsidiary have been duly incorporated and ~~is a~~ validly ~~existing corporation~~ exist as corporations in good standing under the laws of ~~the State~~ their respective jurisdictions of ~~Delaware. (B) The Company has the~~ incorporation, with full corporate power and authority to ~~own, lease and operate its~~ own their properties and to conduct ~~its~~ their business as described in the ~~Final~~ Prospectus, and is are duly ~~registered~~ qualified or licensed to do business as ~~a financial holding company~~ foreign corporations and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation are in good standing ~~under~~ in each other jurisdiction in which the ~~laws~~ nature of their business or the ~~State~~ character or location of ~~Delaware. (C) Each~~ their properties requires such qualification, except where failure to so qualify will not have a material adverse effect on the business, properties or financial condition of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, Subsidiary taken as a whole. (Dii) ~~All~~ (A) the authorized capitalization of the ~~outstanding~~ Company as of the date of the Prospectus was as is set forth in the Prospectus under the caption "CAPITALIZATION", except as disclosed in the Registration Statement under the heading "As Adjusted"; (B) all of the shares of ~~capital stock of each Significant Subsidiary~~ Common Stock now outstanding have been duly authorized and validly ~~authorized and issued and~~ issued, are fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable, conform in all material respects to the description thereof contained in the Prospectus and to, the best knowledge of such counsel have not been issued in violation of any statutory preemptive rights and, except as described in the Prospectus and restrictions applicable to registered securities under federal and state laws, are ~~directly~~ not subject to any restrictions upon the voting or ~~indirectly owned~~ transfer thereof; (C) all of the Shares and all of the Warrants have been duly authorized and, when issued and delivered to the Underwriters against payment therefor as provided herein, shall be validly issued, fully paid and non-assessable, shall not have been issued in violation of any statutory preemptive rights; (D) to the best knowledge of such counsel the stockholders of the Company do not have any preemptive rights or other rights to subscribe for or purchase, and except for the transfer restrictions imposed by Rule 144 of the Rules and Regulations promulgated under the Act or contained in the Lock-up Agreements executed with the Underwriters, there are no restrictions upon the voting or transfer of, any of the Securities; (E) the Shares and the Warrants, the Warrant Agreement and the Underwriters' Warrant conform in all material respects to the respective descriptions thereof contained in the Prospectus; (F) the issuance by the Company ~~free~~ of all of its outstanding securities has been made in compliance with, or under an exemption from, the Act and ~~clear~~ applicable state securities laws; (G) a sufficient number of shares of Common Stock has been reserved, for all times when any ~~perfected security interest and~~of the Warrants (including the Warrants issuable upon exercise of the Underwriters' Warrant) are outstanding, for issuance upon exercise of all of the Warrants; and (H) to the best knowledge of such counsel, neither the filing of the Registration Statement nor the offering or sale of the Shares and Warrants as contemplated by this Agreement gives rise to any registration rights or other ~~security interests~~rights, ~~claims, liens~~ other than those which have been effectively waived or ~~encumbrances. The Company’s authorized equity capitalization is as set forth~~ satisfied or described in the ~~Final~~ Prospectus., for or relating to the registration of any securities of the Company; (Eiii) ~~This~~ the certificates evidencing the Shares and the Warrants have been duly authorized by the Board of Directors and complies with all applicable legal requirements under Delaware General Corporation Law; and the Warrants are exercisable for shares of Common Stock in accordance with the terms of the Warrants and at the prices therein provided for; (iv) this Agreement, the Warrant Agreement, the Underwriters' Warrant, and the Financial Consulting Agreement ~~has~~ have been duly and validly authorized, executed and delivered by the ~~Company. (F) The Indenture has been duly authorized, executed and delivered by the~~ Company and (assuming ~~such Indenture has been duly authorized, executed~~ due execution and ~~delivered~~ delivery thereof by the ~~Trustee~~Underwriters and/or Continental Stock Transfer & Trust Company, as the case may be) ~~constitutes a~~ all of such agreements are, or when duly executed shall be, the valid and legally binding ~~agreement~~ obligations of the Company, enforceable ~~against the Company~~ in accordance with ~~its terms,~~ their respective terms (except as ~~enforcement thereof~~ enforceability may be limited by bankruptcy, insolvency, reorganization, ~~moratorium~~ moratorium, fraudulent conveyance, receivership, conservatorship, or other ~~laws~~ similar laws, regulations or procedures of general applicability now or hereafter in effect relating to or affecting ~~enforcement~~ creditors, or other obligees' rights, generally, (b) Federal or state securities laws to the extent that rights to indemnification and contribution under such agreements may be unenforceable thereunder, and (c) general equity principles and to the discretion of ~~creditors’ rights generally or by general equitable principles (~~the court, regardless of whether such enforceability is considered in a proceeding in equity or at law); provided, ~~and except further as enforcement thereof may be limited by governmental authority to limit~~however, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which that no opinion need to be ~~rendered).~~expressed as to the enforceability of the indemnity provisions contained in Section 6 or the contribution provisions contained in Section 7; (Iv) ~~The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and,~~ to the knowledge of such counsel, other than as described in the Prospectus (A) there is no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counselpending, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no contemplated legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which proceeding affecting the Company or ~~any Significant~~ the Subsidiary which is ~~a party~~ reasonably likely to materially and adversely affect the business, property, financial condition or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which results of operations of the Company or ~~any Significant~~ the Subsidiary ~~is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries,~~ taken as a whole, or ~~violate~~ which questions the validity of the Offering, the Securities, this Agreement, the Warrant Agreement, the Underwriters' Warrant, or the Financial Consulting Agreement or of any ~~order~~ action taken or ~~regulation known to such counsel~~ to be ~~applicable to~~ taken by the Company pursuant thereto; and (B) there is no legal or ~~any Significant Subsidiary of any court,~~ governmental regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents proceeding required to be described or referred to in the Registration Statement which is not so described or referred to; (vi) to the knowledge of such counsel, (A) the Company is not in violation of or default under this Agreement, the Warrant Agreement, the Underwriters' Warrant, or the Financial Consulting Agreement; and (B) to the ~~Final Prospectus~~ knowledge of such counsel, the execution and delivery hereof and thereof and consummation of the transactions herein or therein contemplated shall not result in a material violation of, or constitute a default under, the Certificate of Incorporation or By-laws of the Company or the certificate of incorporation or by-laws of the Subsidiary, or any material obligation, agreement, covenant of condition contained in any bond, debenture, note or other evidence of indebtedness, or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to ~~be filed~~ which the Company or the Subsidiary is a party or by which the assets of the Company or the Subsidiary are bound and which is attached as ~~exhibits~~ an exhibit to the Registration ~~Statement other than those described~~ Statement, or ~~referred to therein or filed or incorporated by reference as exhibits thereto~~any material order, ~~and the descriptions thereof or references thereto are correct. (O) No consent~~rule, ~~approval~~regulation, ~~authorization~~writ, ~~order~~ injunction or decree of any government, governmental instrumentality or court applicable to the Company or ~~governmental agency~~ the Subsidiary (other than state securities or ~~body including~~ blue sky laws as to which we express no opinion); (vii) to the ~~SEC~~ knowledge of such counsel, (a) the Company and the Subsidiary have obtained, or are in the process of obtaining, all licenses, necessary to the conduct of its business as described in the Prospectus, except where the failure to obtain such licenses would not have a material adverse effect on the financial condition, business or properties of the Company, and (b) such obtained licenses, are in full force and effect, except where the failure to obtain such licenses would not have a material adverse effect on the financial condition, business or properties of the Company; (viii) the Registration Statement has become effective under the Act, and to the knowledge of such counsel, no stop order denying or suspending the effectiveness of the Registration Statement is ~~required~~ in effect, and no proceedings for that or any similar purpose have been instituted or are pending before or threatened by the Commission; (ix) the Registration Statement and the Prospectus (except for the ~~consummation by the Company of the transactions contemplated by this Agreement~~financial statements, ~~except such~~ notes thereto and other financial tables, financial information and statistical data contained therein, as ~~may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P~~to which counsel need not express an opinion) ~~Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed~~ comply as to form in all material respects with the ~~Exchange~~ Act and the ~~Exchange~~ Rules and Regulations; (x) all descriptions contained in the Registration Statement and the Prospectus, and any amendments or supplements thereto, of material contracts and other documents are accurate and fairly present the information required to be described, and such counsel is familiar with all contracts and other documents referred to in the Registration Statement and the Prospectus, and any such amendment or supplement, or filed as exhibits to the Registration Statement and, to the knowledge of such counsel, no contract or other documents of a character required to be summarized or described therein or to be filed as an exhibit thereto is not so summarized, described or filed. (xi) except for registration under the Act ~~regulations thereunder~~ and registration or qualification of the Securities under applicable state or foreign securities or blue sky laws the clearance of such offering by the NASD, the listing of the stock on NASDAQ, the Boston Stock Exchange, no authorization, approval, consent or license of any governmental or regulatory authority or agency is necessary in connection with: (A) the authorization, issuance, sale, transfer or delivery of the Securities by the Company in accordance with this Agreement; (B) the execution, delivery and performance of this Agreement by the Company; (C) the issuance of the Underwriters' Warrant in accordance with this Agreement or the Securities issuable upon exercise thereof; Such opinion shall also state that Company Counsel's examination of the Registration Statement and its discussions with the Company and its independent auditors did not disclose any information which gives Company Counsel reason to believe that the Registration Statement (other than the financial statements, notes thereto, financial tables and schedules and other financial and statistical information and information regarding the underwriter as to which counsel need not express an opinion) at the time it became effective contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (other than the schedules, financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no view is expressed) at the time it became effective contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading. In addition, such opinion ~~need be rendered)~~shall also cover such matters incident to the transactions contemplated hereby as you or Underwriters' Counsel shall reasonably request. In rendering such opinion, ~~such counsel~~ Company Counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of ~~fact, to the extent deemed proper, on~~ fact upon certificates of ~~responsible~~ officers of the ~~Company~~ Company, and ~~its subsidiaries and~~ of public officials, and may rely as to all matters of law other than the law of the United States and the General Corporation Law of the State of Delaware upon opinions of counsel satisfactory to you, in which case the opinion shall state that they have no reason to believe that you and they are not entitled so to rely.

Appears in 1 contract

Samples: Underwriting Agreement (Phoenix Preschool Holdings Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~, ~~Senior Counsel~~ of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date [or any Additional Closing Date, as the case may be,] to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date [or such Additional Closing Date, as the case may be], and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date [or such ~~action~~ Additional Closing Date, as the case may be], and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter or directly by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series __ Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; [the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange;] and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date , to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series AA Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included~~ Representative or ~~incorporated~~ directly by ~~reference therein~~any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need ~~be rendered~~express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X.~~ Ms. Xxxxxx Sell Xxxx, ~~Senior~~ Executive Vice President - Corporate and Shared Services and Secretary, or the General Counsel of the ~~Company~~Company (collectively, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ "Company Legal Officer") to the effect that: (Aa) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware.~~Missouri and is duly qualified as a foreign corporation to do business in the State of Kansas; (Bb) ~~The~~ the Company is a public utility holding company duly authorized by its Articles of Incorporation, as amended, under which it was organized to carry on the business in which it is engaged as set forth in the Prospectus; and the Company has the legal right to function and operate as an electric utility holding company in the States of Missouri and Kansas; c) this Agreement has been duly authorized, executed and delivered by the Company; the authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company; d) the Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in this Agreement, will be validly issued and fully paid and non-assessable and no holder of the Securities is or will be subject to personal liability by reason of being such a holder; e) the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company; f) each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final Prospectus,~~ Prospectus and is duly ~~registered~~ qualified as a ~~financial holding~~ foreign corporation or limited liability company ~~and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized~~ to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction in which ~~requires~~ such qualification ~~wherein it owns~~ is required, whether by reason of the ownership or ~~leases any material properties~~ leasing of property or ~~conducts any material~~ the conduct of business, except where the failure so to so qualify or to be in good standing would not ~~have any material adverse effect upon~~ result in a Material Adverse Effect; except as otherwise disclosed in the ~~business~~Registration Statement, ~~condition~~ all of the issued and outstanding capital stock or ~~properties~~ limited liability company interests directly or indirectly owned by the Company of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of the Company ~~and its~~ Legal Officer's knowledge, such capital stock or limited liability company interests owned by the Company, are owned by the Company, directly or through subsidiaries, ~~taken as a whole. (D) All~~ free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock or limited liability company interests of ~~each Significant~~ any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary and the Company's indirect ownership interest in Strategic Energy, LLC, is 99.99% and all Subsidiaries through which this interest is owned are listed as Subsidiaries; g) all orders authorizing the issuance and sale of the Securities have been duly ~~and validly authorized and issued~~ entered and are ~~fully paid~~ still in full force and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable~~effect, and ~~are directly~~ no further approval, authorization, consent, certificate or ~~indirectly owned by the Company free and clear~~ order of any ~~perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens~~ state or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium federal commission or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental regulatory authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than ~~statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ as may be required under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents securities or blue sky laws ~~specifically referred to therein, are accurate summaries of such provisions or laws or~~ of the ~~sources from~~ various states, as to which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements we need express no opinion) is necessary with respect to the ~~Financial Industry Regulatory Authority~~issue and sale of the Securities as contemplated in this Agreement; h) the Company and its Subsidiaries, ~~Inc. (“FINRA”~~to the extent required, hold valid and subsisting franchises, licenses and permits authorizing them to carry on the respective utility businesses in which they are engaged, in the territory from which substantially all of their gross operating revenue is derived; i) the statements contained in the Registration Statement and Prospectus which are expressed therein have been made on the authority of legal counsel to the Company, have been reviewed by such legal counsel and, as to ~~which no opinion need be rendered).~~matters of law and legal conclusions, are correct; (Ij) ~~The Indenture is qualified under~~ the ~~Trust Indenture Act. (J) The~~ Registration Statement is effective under the ~~Securities Act and~~1933 Act, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for ~~that purpose have been initiated~~ a stop order are pending or, to the ~~knowledge~~ best of ~~such counsel~~the Company Legal Officer's knowledge, threatened ~~by the SEC; and any required filing~~ under Section 8(d) of the ~~Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities~~ 1933 Act.; (KA) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus comply as to form in all material respects with the 1933 Act and ~~each amendment thereof or supplement thereto as of their respective effective or issue dates~~ with the 1933 Act Regulations and (~~other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to~~ B) the ~~Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or~~ documents incorporated by reference ~~therein~~in the Prospectus, as ~~to which no opinion need be rendered)~~ of the time they were filed with the SEC, complied as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1934 Act and the ~~regulations under each~~ 1934 Act Regulations, it being understood that the Company Legal Officer need express no opinion or belief as to the financial statements and other financial data included in the Registration Statement, Prospectus or such documents; l) to the best of ~~those Acts. (L) To such counsel’s~~ the Company Legal Officer's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus, other than those disclosed therein., and all pending legal or governmental proceedings to which the Company is a party or of which any of its property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the financial condition of the Company; (Mm) ~~Neither~~ to the best of the Company Legal Officer's knowledge, the Company is not in violation of its Articles of Incorporation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note or lease to which it is a party or by which it or any of its properties may be bound. The execution and delivery of this ~~Agreement, nor~~ Agreement or the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor the~~ incurrence of the obligations therein contemplated, will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company ~~or any Significant Subsidiary~~ is a party or ~~bound,~~ by which it may be bound or to which any of the ~~breach of which would have a material adverse effect on the financial condition~~ property or assets of the Company ~~and its subsidiaries, taken as a whole~~is subject, or ~~violate~~ any ~~order~~ law, administrative regulation or ~~regulation~~ administrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, authority or body or any ~~Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or~~ arbitrator having jurisdiction over the ~~Company or any Significant Subsidiary~~Company; nor will such action result in any violation of the provisions of the ~~Restated Certificate~~ Articles of ~~Incorporation~~ Incorporation, as amended, or ~~Bylaws~~ by-laws of the Company.; and (Nn) ~~To such counsel’s~~ to the best of the Company Legal Officer's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and~~ or the ~~Final~~ Prospectus or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct~~. (O) No consent~~, ~~approval, authorization, order~~ and no default exists in the due performance or ~~decree~~ observance of any ~~court~~ material obligation, agreement, covenant or ~~governmental agency~~ condition contained in any contract, indenture, mortgage, loan agreement, note, lease or ~~body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement~~other instruments described, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document referred to, filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsreference.

Appears in 1 contract

Samples: Underwriting Agreement (Great Plains Energy Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series CC Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included~~ Representative or ~~incorporated~~ directly by ~~reference therein~~any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need ~~be rendered~~express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The ~~opinion of~~ Investors shall have received from Xxxxxxxx ~~X. Xxxx~~Xxxxxxx & Xxxxx, ~~Senior Counsel of~~ PLLC, council for the Company, ~~or another~~ an opinion, dated as of the ~~Company’s lawyers~~ Closing, in form and substance satisfactory to the ~~Underwriters~~Investors, ~~dated the Closing Date~~ to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a corporation, validly existing ~~corporation in good standing~~ under the laws of the State of ~~Delaware. (B) The~~ Washington, and the Company has the requisite corporate power and corporate authority ~~to own, lease and operate its properties and~~ to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delawarenow being conducted. (Cb) ~~Each of the~~ The Company ~~and the Significant Subsidiaries~~ is ~~duly~~ qualified to do business ~~and is~~ in ~~good standing~~ any state or jurisdiction of the United States in ~~each jurisdiction~~ which ~~requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the failure to so qualify would ~~not~~ have ~~any~~ a material adverse effect ~~upon the business, condition~~ on its business or ~~properties of the Company and its subsidiaries, taken as a whole~~properties. (Dc) ~~All of~~ The Company has the ~~outstanding shares of capital stock of each Significant Subsidiary have been duly~~ requisite corporate power and ~~validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable~~corporate authority to execute, deliver, and ~~are directly or indirectly owned~~ perform this Agreement and the Investor Rights Agreement. All corporate action necessary for the authorization, execution and delivery by the Company ~~free~~ of this Agreement and ~~clear~~ the Investor Rights Agreement and the authorization, issuance, and delivery of ~~any perfected security interest and~~the Series B Stock being sold hereunder and the Conversion Shares has been taken, to and this Agreement and the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This~~ Investor Rights Agreement ~~has~~ have been duly and validly authorized, ~~executed~~ executed, and delivered ~~by the Company. (F) The Indenture has been duly authorized, executed and delivered by~~ BY the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as ~~enforcement thereof~~ enforceability may be limited or affected by ~~bankruptcy, insolvency, reorganization, moratorium or other~~ applicable laws relating to or affecting the enforcement of creditors’ ' rights ~~generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law),~~ and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the IndentureBY equitable principles. (Hd) The ~~statements~~ Series B Stock, when issued, sold, and delivered in accordance with the ~~Final Prospectus (other than statements furnished~~ terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in ~~writing to~~ accordance with the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or terms of the ~~sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan~~ Articles of ~~Distribution (Conflicts of Interest)”~~ Incorporation, will be duly and ~~“Underwriting (Conflicts of Interest)”~~ validly issued, fully paid, and ~~statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)~~nonassessable. (Ie) The ~~Indenture~~ authorized capital stock of the Company consists of the preferred stock, common stock and rights described in paragraphs (i), (ii) and (iii) below: (i) Preferred Stock There are 10,000,000 shares of preferred stock authorized,. 4,812,074 of which have been designated as Series A Stock and all of which is ~~qualified under~~ outstanding; 1,552,655 of which have been designated as Series B Stock, none of which is outstanding. The' rights, privileges, and preferences of the ~~Trust Indenture Act~~preferred stock generally and of the Series B Stock are as stated in the Articles of Incorporation. (Jii) ~~The Registration Statement is effective under~~ Common Stock There are 50,000,000 shares of Common Stock authorized, 13,439,500 shares of which are currently outstanding. Of the ~~Securities Act and~~authorized but unissued Common Stock, to 4,812,074 shares are reserved for issuance upon the ~~knowledge of such counsel, no stop order suspending the effectiveness~~ conversion of the ~~Registration Statement~~Series A Stock, ~~as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under~~ 1,552,655 shares are reserved for issuance upon the ~~Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing~~ conversion of the ~~Final Prospectus pursuant to Rule 424(b) has been made in~~ Series B Stock, 4,210,564 shares are reserved for issuance upon the ~~manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as~~ exercise of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus stock options granted or to be ~~filed as exhibits~~ granted under the Option Plan; 1,439,500 shares are reserved by board action for issuance upon the exercise of warrants granted to the ~~Registration Statement other than those described or referred~~ First Round Investors; 165,775 shares are reserved by board action for issuance upon the exercise of warrants granted to ~~therein or filed or incorporated~~ Lucent; and 153,987 shares are reserved by ~~reference as exhibits thereto, and~~ board action for issuance upon the ~~descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree~~ exercise of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed warrants granted to Pacific Crest Securities Inc. pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included thereinan engagement letter executed March 16, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials1999.

Appears in 1 contract

Samples: Series B Preferred Stock Purchase Agreement (Freei Networks Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Xxxxxxx, ~~Senior Counsel of~~ -------------------------- special counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware~~Maryland. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus. (iii) Texas HCP, Inc. has been duly incorporated and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware. (C) Each~~ its incorporation, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; all of the ~~Company~~ issued and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of ~~each Significant Subsidiary~~ such subsidiary have been duly and validly authorized and ~~issued~~ issued, and are fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-~~non- assessable, and, to the best of such counsel's knowledge and information are ~~directly or indirectly~~ owned by the ~~Company~~ Company, directly or through subsidiaries, free and clear of any ~~perfected security interest and~~mortgage, ~~to the knowledge of such counsel~~pledge, ~~any other security interests~~lien, ~~claims~~encumbrance, ~~liens~~ claim or ~~encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~equity. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such Indenture has been duly authorized~~due authorization, ~~executed~~ execution and ~~delivered~~ delivery thereof by the Trustee) ~~constitutes~~ is a legally valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (Gvi) The Notes are in due and proper form and have been duly authorized by the Company and, when ~~issued,~~ authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, the Notes will have been duly executed and delivered by, and will constitute valid and ~~legally~~ binding obligations of of, the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting ~~enforcement~~ the rights of ~~creditors’ rights generally~~ creditors or by general equity principles ~~(regardless of whether enforceability is considered in a proceeding in equity or at law),~~ and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~certain additional customary exceptions, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The ~~statements~~ Notes and the Indenture conform in all material respects to the respective descriptions thereof contained in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)Prospectus. (Iviii) The Indenture is has been duly qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is has been declared effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge and information, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act and no proceedings ~~for that purpose~~ therefor have been initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) The Registration ~~Statement~~Statement at the time it became effective and at the Representation Date, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing appeared on its face to ~~the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied~~ comply as to form in all material respects with the requirements of for registration statements on Form S-3 under the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each~~ 1933 Act Regulations; it being understood that such counsel need express no opinion with respect to documents incorporated by reference therein except as set forth in paragraph (xiv) below, the Form T-1 or the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Registration Statement. In passing upon the compliance as to form of ~~those Acts~~the Registration Statement, such counsel may assume that the statements made and incorporated by reference therein are true, correct and complete. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus~~, other than those disclosed therein~~. (Mxii) ~~Neither~~ The issue and the ~~execution~~ sale of the Notes and ~~delivery of this Agreement, nor~~ the ~~consummation~~ compliance by the Company with the provisions of ~~the transactions contemplated by~~ this Agreement and the ~~Notes nor~~ Indenture, and the ~~incurrence~~ consummation of the ~~obligations~~ transactions therein contemplated, will ~~conflict with~~ not result in a breach or violation of any material term or provision of, or constitute a ~~breach of, or~~ default ~~under, any indenture or other agreement or instrument to which~~ under the ~~Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth~~ Material Agreements (as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to defined in such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiaryopinion); nor will such action result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ by-laws of the ~~Company~~Company or, to the best of such counsel's knowledge, result in any material violation of any statute or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that such counsel need express no opinion under federal securities laws except as expressly otherwise provided in this Section 5(a)(1), and no opinion under state securities laws (including real estate syndication laws) or any antifraud laws. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxiii) No ~~consent,~~ approval, authorization, consent, order or decree of any court or governmental authority or agency ~~or body including the SEC~~ is required for the consummation by the Company of the transactions contemplated by this ~~Agreement~~Agreement or in connection with the sale of Notes hereunder, except such as may have been obtained or rendered, as the case may be, or as may be required under the ~~Blue Sky laws of any jurisdiction~~ 1933 Act, the 1933 Act Regulations, the 1939 Act or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~state securities laws. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder~~ (other than the financial statements and other financial and statistical ~~information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters~~ data and ~~other than the Statements of Eligibility on Form T-1~~ related schedules included or incorporated by reference therein, as to which no opinion need be rendered)) at the time it was filed with the Commission, appeared on its face to comply as to form in all material respects with the 1934 Act and the 1934 Act Regulations. In ~~rendering~~ passing upon compliance as to form of such ~~opinion~~documents, such counsel may ~~rely~~ assume that the statements made therein are true, correct and complete. (Axv) The statements set forth in the Prospectus Supplement under the caption "Material Federal Income Tax Considerations", insofar as to such statements constitute matters ~~involving~~ of law, summaries of legal matters, documents or proceedings, or legal conclusions, are accurate in all material respects. (xvi) The Company is not an "investment company" within the ~~application~~ meaning of ~~laws~~ the Investment Company Act of ~~any jurisdiction other than the State of Minnesota or the United States~~1940, as amended. Xxxxxx & Xxxxxxx shall also deliver to the ~~extent deemed proper~~ Agents a favorable opinion to the effect that the Company has been organized in conformity with the requirements for qualification as a real estate investment trust and ~~specified~~ its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code, in ~~such opinion, upon the opinion of counsel who are~~ form and substance satisfactory to counsel for the ~~Underwriters with respect~~ Agents and subject to customary assumptions, limitations and exceptions acceptable to counsel for the ~~transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials~~Agents.

Appears in 1 contract

Samples: Distribution Agreement (Health Care Property Investors Inc)

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. ~~Xxxx~~-------------------------- Xxxxxxxxxx, ~~Senior Counsel~~ Esq., Vice President and Chief Legal Officer, or H. Xxxxx Xxxxxx, Deputy General Counsel, of the ~~Company~~Company dated as of such Closing Date or Settlement Date, ~~or another of the Company’s lawyers~~ in form and substance satisfactory to the ~~Underwriters~~Agents and the Agents' counsel, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) ~~Each~~ To the best of such counsel's knowledge, the Company ~~and the Significant Subsidiaries~~ is duly qualified as a foreign corporation to do transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification ~~wherein it owns or leases any material properties or conducts any material business, except where~~ and in which failure of the ~~failure~~ Company to be so ~~qualify~~ qualified and in good standing would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business~~Company and its subsidiaries considered as a single enterprise. (iv) This Agreement (and, ~~condition or properties~~ if the opinion is being given pursuant to Section 6(c) hereof as a result of the Company ~~and its subsidiaries~~having entered into a Terms Agreement requiring such opinion, ~~taken as a whole. (D~~the applicable Terms Agreement) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~principles. (Gvi) The Notes are in the form contemplated by the Indenture, have been duly authorized by all necessary corporate action and, when ~~issued,~~ executed and authenticated as specified in the Indenture and delivered ~~pursuant to the provisions of this Agreement and the Indenture~~ against payment of the consideration ~~therefor~~therefor in accordance with this Agreement, as supplemented by the applicable Terms Agreement, if any, will ~~constitute~~ be valid and ~~legally~~ binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statesprinciples, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the ~~captions “~~caption "Description of Our Debt Securities~~,” “Plan of Distribution (Conflicts of Interest),” “~~" and in the Prospectus Supplement under the caption "Description of Notes~~” and “Underwriting (Conflicts of Interest),”~~ ", insofar as they purport to summarize certain provisions of documents ~~or laws~~ specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)provisions. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) ~~The~~ At the time the Registration ~~Statement~~Statement became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) ~~complied~~ appeared on its face to comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final Prospectus~~Registration Statement, other than those disclosed therein~~. (M) Neither the execution~~ , and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with all pending legal or ~~constitute a breach of, or default under, any indenture or other agreement or instrument~~ governmental proceedings to which the Company or any ~~Significant Subsidiary~~ subsidiary is a party or ~~bound and~~ of which ~~constitutes a material contract and~~ any of their property is ~~set forth as an exhibit~~ the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~business, ~~or any other indenture or material agreement or instrument known to such counsel and to which~~ are, considered in the ~~Company or any Significant Subsidiary is a party or bound~~aggregate, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Companynot material. (Nxii) To the best of such counsel~~’s knowledge~~'s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments ~~or documents~~ required to be described or referred to in the Registration Statement ~~and the Final Prospectus~~ or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct, and, except for certain minor matters which, either individually or in the aggregate, will not or do not have a material adverse effect on the Company or its business, no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference. (Oxiii) No consent, approval, authorization, or order ~~or decree~~ of any court or governmental authority or agency ~~or body including the SEC~~ is required ~~for~~ in connection with the ~~consummation by the Company~~ sale of the ~~transactions contemplated by this Agreement~~Notes, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, or state securities laws; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and the Indenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, or any law, administrative regulation or administrative or court decree, known to such counsel to be applicable to the Company, of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company, except that such counsel need express no opinion as to any state securities or Blue Sky ~~laws of~~ laws, or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA~~ thereunder; nor will such action result in ~~connection with the purchase and distribution~~ any violation of the ~~Notes by~~ provisions of the ~~Underwriters~~charter or bylaws of the Company. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied~~ (except for the financial statements included therein or omitted therefrom, as to which counsel need not comment), appeared on its face to comply when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange Act~~ rules and regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)promulgated thereunder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States~~New York, to the extent deemed proper and specified in such opinion, upon the opinion of ~~counsel who are satisfactory to~~ Xxxxx & Wood LLP, counsel for the ~~Underwriters with respect~~ Agents, delivered pursuant to ~~the transactions contemplated hereby;~~ subsection (a)(2) hereof and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials.

Appears in 1 contract

Samples: Distribution Agreement (Comdisco Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Ms. Jeanix Xxxx Latz, ~~Senior~~ Xxxior Vice President - Corporate Services and Corporate Secretary, or the General Counsel of the ~~Company~~Company (collectively, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ "Company Legal Officer") to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus,~~ Missouri and is duly ~~registered~~ qualified as a ~~financial holding company and~~ foreign corporation to do business in the State of Kansas; (ii) the Company is a ~~bank holding company under the Bank Holding Company Act~~ public utility duly authorized by its Restated Articles of ~~1956~~Consolidation, as amended~~; Xxxxx Fargo Bank~~, ~~National Association (“Xxxxx Fargo Bank”) is a national banking association authorized~~ under which it was organized to ~~transact~~ carry on the business ~~of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”)~~ in which it is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is engaged as set forth in the ~~Final~~ Prospectus.; and the Company has the legal right to function and operate as an electric utility in the States of Missouri and Kansas; (Eiii) ~~This Agreement has been duly~~ this Agreement, the Terms Agreements, if any, and ~~validly authorized, executed and delivered by~~ the ~~Company. (F) The~~ Indenture ~~has~~ have each been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ each constitutes a legal, valid and ~~legally~~ binding ~~agreement~~ obligation of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or other laws ~~relating to or~~ affecting the enforcement of creditors’ ' rights ~~generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)~~generally; and this Agreement, the Terms Agreements, if any, and ~~except further~~ the Indenture conform as ~~enforcement thereof may~~ to legal matters with the statements concerning them made in the Registration Statement and the Prospectus, and such statements accurately set forth the matters respecting this Agreement, the Terms Agreements, if any, and the Indenture required to be ~~limited by governmental authority to limit, delay or prohibit~~ set forth in the ~~making of payments outside~~ Registration Statement and the ~~United States.~~Prospectus; (Giv) ~~The Notes~~ the Underwritten Debt Securities are in due and proper form; the issue and sale of the Underwritten Debt Securities by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Underwritten Debt Securities, when ~~issued,~~ duly executed (which execution may include facsimile signatures of officers of the Company) authenticated and delivered ~~pursuant~~ to the ~~provisions of this Agreement and the Indenture~~ purchasers thereof against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of ~~the Company, enforceable against~~ the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or other laws ~~relating to or~~ affecting enforcement of creditors’ ' rights ~~generally or by general equity principles (regardless of whether enforceability is considered~~ generally; and the Underwritten Debt Securities conform as to legal matters with the statements concerning them made in ~~a proceeding in equity or at law)~~the Registration Statement and Prospectus, and ~~except further as enforcement thereof may~~ such statements accurately set forth the matters respecting the Underwritten Debt Securities required to be ~~limited by governmental authority to limit, delay or prohibit~~ set forth in the ~~making~~ Registration Statement and Prospectus; (v) the order of ~~payments outside~~ the ~~United States~~Missouri Public Service Commission authorizing the issuance and sale of the Underwritten Debt Securities has been duly entered and is still in force and effect, and ~~each holder~~ no further approval, authorization, consent, certificate or order of ~~Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by~~ any state or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents federal commission or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements regulatory authority is necessary with respect to the ~~Financial Industry Regulatory Authority~~issue and sale of the Underwritten Debt Securities as contemplated in this Agreement and applicable Terms Agreement; (vi) the Company holds valid and subsisting franchises, ~~Inc.~~ licenses and permits authorizing it to carry on the respective utility businesses in which it is engaged in the territory from which substantially all of its gross operating revenue is derived; (~~“FINRA”~~vii) the statements contained in the Registration Statement and Prospectus which are expressed therein to have been made on the authority of legal counsel to the Company have been reviewed by him and, as to ~~which no opinion need be rendered).~~matters of law and legal conclusions, are correct; (Iviii) ~~The Indenture is qualified under~~ the ~~Trust Indenture Act. (J) The~~ Registration Statement is effective under the ~~Securities Act and~~1933 Act, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for ~~that purpose have been initiated~~ a stop order are pending or, to the ~~knowledge~~ best of ~~such counsel~~Ms. Lxxx'x xxxxledge, threatened ~~by the SEC; and any required filing~~ under Section 8(d) of the ~~Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities~~ 1933 Act.; (Kix) ~~The~~ (A) the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus comply as to form in all material respects with the 1933 Act and ~~each amendment thereof or supplement thereto as of their respective effective or issue dates~~ the 1939 Xxx xxx with the 1933 Act Regulations and (~~other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to~~ B) the ~~Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or~~ documents incorporated by reference ~~therein~~in the Prospectus, as ~~to which no opinion need be rendered)~~ of the time they were filed with the SEC, complied as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1934 Act and the ~~regulations under each of those Acts.~~1934 Act Regulations, it being understood that Ms. Lxxx xxxx express no opinion or belief as to the financial statements and other financial data included in the Registration Statement, Prospectus or such documents; (Lx) the Indenture has been qualified under the 1939 Act; (xi) To ~~such counsel’s~~ the best of the Company Legal Officer's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus, other than those disclosed therein., and all pending legal or governmental proceedings to which the Company is a party or of which any of its property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the financial condition of the Company; (Mxii) ~~Neither~~ To the best of the Company Legal Officer's knowledge, the Company is not in violation of its Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note or lease to which it is a party or by which it or any of its properties may be bound. The execution and delivery of this ~~Agreement, nor~~ Agreement and applicable Terms Agreement or the consummation by the Company of the transactions contemplated by this Agreement and ~~the Notes nor~~ applicable Terms Agreement and the incurrence of the obligations therein contemplated, will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company ~~or any Significant Subsidiary~~ is a party or ~~bound,~~ by which it may be bound or to which any of the ~~breach of which would have a material adverse effect on the financial condition~~ property or assets of the Company ~~and its subsidiaries, taken as a whole~~is subject, or ~~violate~~ any ~~order~~ law, administrative regulation or ~~regulation~~ administrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, authority or body or any ~~Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or~~ arbitrator having jurisdiction over the ~~Company or any Significant Subsidiary~~Company; nor will such action result in any violation of the provisions of the Restated ~~Certificate~~ Articles of ~~Incorporation~~ Consolidation, as amended, or ~~Bylaws~~ by-laws of the Company.; (Nxiii) To ~~such counsel’s~~ the best of the Company Legal Officer's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and~~ or the ~~Final~~ Prospectus or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct~~. (O) No consent~~, ~~approval, authorization, order~~ and no default exists in the due performance or ~~decree~~ observance of any ~~court~~ material obligation, agreement, covenant or ~~governmental agency~~ condition contained in any contract, indenture, mortgage, loan agreement, note, lease or ~~body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement~~other instruments described, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document referred to, filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsreference.

Appears in 1 contract

Samples: Underwriting Agreement (Kansas City Power & Light Co)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series W Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxxx, ~~Senior Counsel~~ Assistant General Counsel, Executive Director and Assistant Secretary of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing ~~Date~~ Date, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series FF Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Act. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included~~ Representative or ~~incorporated~~ directly by ~~reference therein~~any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need ~~be rendered~~express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series N Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxx & Xxxxxxx / Xxxxx & XxXxxxxx, ~~Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai.) The Company ~~has been~~ is a private company with limited liability duly incorporated and ~~is a~~ validly existing ~~corporation in good standing~~ under the laws of ~~the State of Delaware.~~The Netherlands; (Bii.) This Agreement, the Indenture and the Guarantees have been duly authorized, executed, sealed and attested and delivered by the Company in accordance with the Resolution and when duly executed, sealed and attested and delivered by the other parties thereto will constitute valid and legally binding instruments of the Company enforceable against the Company in accordance with their terms; (iii.) The Notes have been duly authorized and, when the final terms thereof have been duly established and approved and when duly executed by the Company, in each case pursuant to the authority granted in the Resolution, and authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the purchasers thereof; (iv.) The Company has the corporate power and corporate authority to ~~own~~execute and deliver and perform the obligations on its part to be performed under this Agreement, ~~lease~~ the Indenture, the Guarantees and ~~operate its properties~~ the Notes; (v.) The execution and delivery of this Agreement, the Guarantees, the Indenture and the Notes, the fulfillment of the terms herein and therein set forth and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of, or default under, the Deed of Incorporation or any law or administrative regulation of general application (as opposed to ~~conduct its business~~ applicable to one or more specified natural or legal persons); (vi.) The choice of New York law as ~~described~~ the law governing this Agreement, the Indenture, the Notes and the Guarantees is a valid choice of law and would be given effect by the courts of The Netherlands with respect to the obligations of the parties thereunder; (vii.) In order to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Indenture, the Guarantees or any of the Notes, it is not necessary that this Agreement, the Indenture or the Guarantees or any of the Notes be filed, recorded or enrolled with any public authority, governmental agency or governmental department of The Netherlands; (viii.) The submission to the jurisdiction of any United States Federal court or state court sitting in the ~~Final Prospectus~~Borough of Manhattan, the City of New York, State of New York, and the irrevocable waiver of any objection to the laying of venue of a proceeding in such court and of any immunity to jurisdiction of such court, to which it is ~~duly registered~~ or may become entitled, and the designation of CT Corporation as ~~a financial holding company~~ the agent of the Company to receive service of process with respect to any proceedings of or in the courts of the United States of America arising out of or relating to this Agreement and ~~a bank holding company under~~ the ~~Bank Holding Company Act~~ Indenture are valid and binding on the Company; (ix.) All authorizations, consents or approvals of, or registrations or filings with, any governmental department or regulatory authority of ~~1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact~~ or within The Netherlands which are required for the ~~business~~ execution and delivery of ~~banking under~~ the ~~National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank~~Guarantees, the ~~“Significant Subsidiaries”~~Notes, the Indenture and this Agreement by the Company or the consummation by the Company of the transactions contemplated thereunder have been obtained or made and are in full force and effect; (x.) There is no treaty regarding the recognition and enforcement of judicial decisions between the U.S. and The Netherlands. Therefore, a final judgment for a definite sum duly ~~organized and validly existing corporation in good standing under~~ obtained against the ~~laws~~ Company from a court of the State of ~~Delaware.~~ New York or any New York State or U.S. Federal Court sitting in New York City will not be recognized and enforced by a Dutch court and it will be necessary to bring the matter before the competent Dutch court. The claimant(s) may, in the course of these proceedings, submit the judgment rendered by the New York or U.S. Federal court sitting in New York City. Under current practice, a Dutch court normally will issue a judgment incorporating the judgment rendered by such court in a civil matter if it finds that (Ci) ~~Each~~ such court had jurisdiction over the original proceedings, (ii) the judgment was obtained in compliance with principles of due process; (iii) the judgment is final and conclusive such that all appeals have been exhausted and no other remedy could be obtained from a judicial body, and (iv) the judgment does not contravene the public policy or the public order of The Netherlands. Such counsel shall also state that it is not aware of any reason why in general the enforcement of the obligations of the Company under this Agreement and the ~~Significant Subsidiaries is duly qualified to do business~~ Indenture and is the Notes would be in ~~good standing~~ conflict with current public policy in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole.The Netherlands; (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectusxi. (E) This ~~Agreement has been duly~~ Agreement, the Indenture, the Notes and ~~validly authorized, executed and delivered by~~ the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized andGuarantees, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture ~~against payment~~ are in proper legal form under the laws of The Netherlands for the ~~consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable~~ enforcement thereof against the Company or the Guarantor, as the case may be, in ~~accordance with their terms~~the courts of The Netherlands; (xii.) No withholding, ~~except as enforcement thereof may be limited by bankruptcy~~stamp duty, ~~insolvency~~stamp duty reserve tax or issue, ~~reorganization~~documentary, ~~moratorium~~ registration or other ~~laws relating to~~ similar tax imposed by any government department or ~~affecting enforcement~~ other taxing authority of ~~creditors’ rights generally~~ or in The Netherlands is payable by ~~general equity principles (regardless of whether enforceability is considered in a proceeding in equity~~ the Agents or ~~at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States, and each holder of Notes will be entitled to the benefits~~ holders of the ~~Indenture. (H) The statements~~ Notes in connection with the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” issue and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or delivery of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus Notes pursuant to ~~Rule 424(b) has been made in~~ this Agreement or the ~~manner~~ execution, delivery and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery performance of this Agreement, ~~nor~~ the ~~consummation by~~ Indenture, the Notes or the Guarantees; (xiii.) The Company of is subject to civil and commercial law with respect to its obligations under this Agreement, the ~~transactions contemplated by this Agreement~~ Indenture and the Notes and neither the Company nor any of its properties or assets sited in The Netherlands enjoy any right of immunity, on the ~~incurrence~~ grounds of sovereignty or otherwise, with respect to its obligations under this Agreement, the Indenture and the Notes from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court in The Netherlands or any Federal court of the ~~obligations therein contemplated~~United States of America or any court of the State of New York, ~~will conflict with~~ in each case located in the Borough of Manhattan in the City of New York, from service of process, from attachment upon or ~~constitute a breach of~~prior to judgment, from attachment in aid of execution of judgment, from execution or enforcement of judgment, or ~~default under~~other legal process; (xiv.) None of the holders of the Notes outside The Netherlands or any of the Agents will be deemed resident, domiciled or conducting business in The Netherlands solely by the execution, delivery, performance, or enforcement of this Agreement, the Indenture, the Notes or the Guarantees; (xv.) None of the holders of the Notes outside The Netherlands or any ~~indenture~~ of the Agents will be subject to taxation in The Netherlands solely by the execution, delivery, performance, or ~~other agreement~~ enforcement of this Agreement, the Indenture or ~~instrument to which~~ the Notes, provided such holder is not a private individual and does not have a substantial interest in the Company ~~or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth~~ as ~~an exhibit~~ described in the Prospectus Supplement under "Netherlands Taxation". (xvi.) The information contained in the Prospectus Supplement under "The Netherlands Taxation" to the ~~Company’s most recent Annual Report on Form 10-K~~ extent it covers matters of law or ~~any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to~~ legal conclusions has been reviewed by such counsel and ~~to which the Company or any Significant Subsidiary~~ is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Deere & Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Mxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (Bii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; ~~Xxxxx~~ Wxxxx Fargo Bank, National Association (“~~Xxxxx~~ Wxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (~~“WFC Holdings,” and~~ together with ~~Xxxxx~~ Wxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (Ciii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Div) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.X.X. §00 in the case of ~~Xxxxx~~ Wxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fvi) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States. (Gvii) ~~The~~ When the specific terms of a tranche of Notes have been fixed by an authorized officer of the Company by executing and delivering to the Trustee an authentication certificate supplemental to an officers’ certificate, such Notes will be in due and proper form and will have been established in conformity with Section 301 of the Indenture and will be duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their ~~terms~~terms and entitled to the benefits of the Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States~~, and each holder of Notes will be entitled to the benefits of the Indenture~~. (Hviii) The statements in the ~~Final~~ Basic Prospectus (other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent expressly for use therein) under the captions “Description of Debt ~~Securities~~Securities of Wxxxx Fargo & Company,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “~~Underwriting~~ Supplemental Plan of Distribution (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the ~~captions~~ caption “Supplemental Plan of Distribution ~~(Conflicts of Interest)” and “Underwriting~~ (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (Iix) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jx) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, ~~or any notice under Rule 401(g)(2) that would prevent its use,~~ has been issued under the ~~Securities~~ 1933 Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the ~~Final~~ Prospectus pursuant to Rule 424(b) ~~has been~~ will be made in the manner and within the time period required by Rule 424(b) under the ~~Securities~~ 1933 Act. (Kxi) The Registration Statement, the ~~Final~~ Basic Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxii) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Basic Prospectus, other than those disclosed therein. (Mxiii) Neither the execution and delivery of this ~~Agreement~~Agreement or of the Indenture, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (Nxiv) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the ~~Final~~ Basic Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxv) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the ~~Underwriters~~Agents. (Pxvi) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Basic Prospectus complied when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations~~ Regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the ~~Underwriters~~ Agents and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Mxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (Bii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; ~~Xxxxx~~ Wxxxx Fargo Bank, National Association (“~~Xxxxx~~ Wxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (~~“WFC Holdings,” and~~ together with ~~Xxxxx~~ Wxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (Ciii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Div) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of ~~Xxxxx~~ Wxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fvi) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States. (Gvii) ~~The~~ When the specific terms of a tranche of Notes have been fixed by an authorized officer of the Company by executing and delivering to the Trustee an authentication certificate supplemental to an officers’ certificate, such Notes will be in due and proper form and will have been established in conformity with Section 301 of the Indenture and will be duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their ~~terms~~terms and entitled to the benefits of the Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States~~, and each holder of Notes will be entitled to the benefits of the Indenture~~. (Hviii) The statements in the ~~Final~~ Basic Prospectus (other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent expressly for use therein) under the captions “Description of Debt ~~Securities~~Securities of Wxxxx Fargo & Company,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “~~Underwriting~~ Supplemental Plan of Distribution (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the ~~captions~~ caption “Supplemental Plan of Distribution ~~(Conflicts of Interest)” and “Underwriting~~ (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (Iix) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jx) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, ~~or any notice under Rule 401(g)(2) that would prevent its use,~~ has been issued under the ~~Securities~~ 1933 Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the ~~Final~~ Prospectus pursuant to Rule 424(b) ~~has been~~ will be made in the manner and within the time period required by Rule 424(b) under the ~~Securities~~ 1933 Act. (Kxi) The Registration Statement, the ~~Final~~ Basic Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxii) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Basic Prospectus, other than those disclosed therein. (Mxiii) Neither the execution and delivery of this ~~Agreement~~Agreement or of the Indenture, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (Nxiv) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the ~~Final~~ Basic Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxv) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the ~~Underwriters~~Agents. (Pxvi) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Basic Prospectus complied when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations~~ Regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the ~~Underwriters~~ Agents and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion ~~of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another~~ of the Company’s ~~lawyers~~ In-House Legal Counsel, dated as of such Commencement Date, in form and substance satisfactory to ~~the Underwriters~~you, ~~dated the Closing Date~~ to the effect that: (A) The Company has been duly incorporated and is a validly existing ~~corporation in good standing~~ under the laws of the State of Delaware. (B) The ~~Company~~ Indenture has been duly authorized, executed and delivered by the ~~corporate power~~ Company, is a valid and ~~authority~~ binding agreement of the Company, enforceable in accordance with its terms, subject to ~~own~~applicable bankruptcy, ~~lease~~ insolvency and ~~operate its properties~~ similar laws affecting creditors’ rights generally, concepts of reasonableness and ~~to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company~~ equitable principles of general applicability. The Indenture has been qualified under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware1939 Act. (C) ~~Each~~ The Notes have been duly authorized and will be valid and binding obligations of the Company and would entitle the ~~Significant Subsidiaries is duly qualified~~ holders thereof to ~~do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the ~~failure to so qualify would not have any material adverse effect upon the business, condition or properties~~ benefits of the ~~Company and its subsidiaries, taken as a whole~~Indenture. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (E) Neither the execution and delivery of this Agreement nor the issuance and sale of the Notes by the Company as provided herein will (i) contravene the certificate of incorporation or by-laws of the Company or (ii) result in any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York or any federal law of the United States of America (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a whole. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements contained in the ~~Final~~ Registration Statement and Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ Supplement under the captions “~~Description~~ Certain Terms of ~~Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of~~ the Notes” and “~~Underwriting (Conflicts~~ The GE Capital Select Term Notes”, respectively, and “Plan of ~~Interest)~~Distribution,” insofar as ~~they~~ such statements purport to summarize certain provisions of documents (or ~~laws specifically~~ provisions thereof) or statutes (or provisions thereof) referred to therein, ~~are accurate summaries of such provisions or laws or of~~ fairly present the ~~sources from~~ matters referred to therein. (G) Each document incorporated by reference in the Prospectus Supplement which ~~such summaries~~ were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect filed pursuant to the ~~Financial Industry Regulatory Authority~~1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, ~~Inc. (“FINRA”)~~ as to which ~~no opinion~~ such counsel need ~~be rendered)~~not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder. (~~I) The Indenture is qualified under the Trust Indenture Act. (J~~H) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (KI) The Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus Supplement and ~~each amendment thereof or supplement~~ any supplements and amendments thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the ~~requirements of the Securities Act, the Trust Indenture~~ 1933 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts~~the Commission thereunder. (LJ) To Nothing has come to such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which attention that would ~~have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to~~ lead such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. believe that (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required except for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and schedules and other financial and statistical ~~information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included~~ material contained or incorporated by reference ~~therein~~therein or omitted therefrom, as to which ~~no opinion~~ counsel need ~~be rendered). In rendering~~ not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, ~~such counsel may rely (A)~~ contained an 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 not misleading, and the Prospectus included as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the ~~Company and its subsidiaries and public officials~~Commencement Date any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Distribution Agreement (General Electric Capital Corp)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the ~~Underwriters~~Underwriter, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an the Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an the Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the ~~Underwriters~~Underwriter. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by ~~or on behalf of~~ the ~~Underwriters~~ Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriter with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series Z Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxx, Esq., Senior ~~Counsel~~ Vice President/Legal of the Company, or ~~another~~ Xxxxxxxx X. Xxxxxxxxxx, Esq., Vice President and General Counsel of the ~~Company’s lawyers~~ Company dated as of such Closing Date or Settlement Date, in form and substance satisfactory to the ~~Underwriters~~Agents and the Agents' counsel, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) ~~Each~~ To the best of such counsel's knowledge, the Company ~~and the Significant Subsidiaries~~ is duly qualified as a foreign corporation to do transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification ~~wherein it owns or leases any material properties or conducts any material business, except where~~ and in which failure of the ~~failure~~ Company to be so ~~qualify~~ qualified and in good standing would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business~~Company and its subsidiaries considered as a single enterprise. (iv) This Agreement (and, ~~condition or properties~~ if the opinion is being given pursuant to Section 6(c) hereof as a result of the Company ~~and its subsidiaries~~having entered into a Terms Agreement requiring such opinion, ~~taken as a whole. (D~~the applicable Terms Agreement) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~principles. (Gvi) The Notes are in the form contemplated by the Indenture, have been duly authorized by all necessary corporate action and, when ~~issued,~~ executed and authenticated as specified in the Indenture and delivered ~~pursuant to the provisions of this Agreement and the Indenture~~ against payment of the consideration ~~therefor~~therefor in accordance with this Agreement, as supplemented by the applicable Terms Agreement, if any, will ~~constitute~~ be valid and ~~legally~~ binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statesprinciples, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the ~~captions “~~caption "Description of Debt Securities~~,” “Plan of Distribution (Conflicts of Interest),” “~~" and in the Prospectus Supplement under the caption "Description of the Notes~~” and “Underwriting (Conflicts of Interest),”~~ ", insofar as they purport to summarize certain provisions of documents ~~or laws~~ specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)provisions. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) ~~The~~ At the time the Registration ~~Statement~~Statement became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and other financial ~~and~~ or statistical ~~information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ data included or incorporated by reference therein, as to which no opinion need be rendered) ~~complied~~ appeared on its face to comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final Prospectus~~Registration Statement, other than those disclosed therein~~. (M) Neither the execution~~ , and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with all pending legal or ~~constitute a breach of, or default under, any indenture or other agreement or instrument~~ governmental proceedings to which the Company or any ~~Significant Subsidiary~~ subsidiary is a party or ~~bound and~~ of which ~~constitutes a material contract and~~ any of their property is ~~set forth as an exhibit~~ the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~business, ~~or any other indenture or material agreement or instrument known to such counsel and to which~~ are, considered in the ~~Company or any Significant Subsidiary is a party or bound~~aggregate, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Companynot material. (Nxii) To the best of such counsel~~’s knowledge~~'s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments ~~or documents~~ required to be described or referred to in the Registration Statement ~~and the Final Prospectus~~ or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct, and, except for certain minor matters which, either individually or in the aggregate, will not or do not have a material adverse effect on the Company or its business, no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference. (Oxiii) No consent, approval, authorization, or order ~~or decree~~ of any court or governmental authority or agency ~~or body including the SEC~~ is required ~~for~~ in connection with the ~~consummation by the Company~~ sale of the ~~transactions contemplated by this Agreement~~Notes, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, or state securities laws; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and the Indenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, or any law, administrative regulation or administrative or court decree, known to such counsel to be applicable to the Company, of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company, except that such counsel need express no opinion as to any state securities or Blue Sky ~~laws of~~ laws, or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA~~ thereunder; nor will such action result in ~~connection with the purchase and distribution~~ any violation of the ~~Notes by~~ provisions of the ~~Underwriters~~charter or bylaws of the Company. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied~~ (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which counsel need not comment), appeared on its face to comply when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange Act~~ rules and regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)promulgated thereunder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States~~New York, to the extent deemed proper and specified in such opinion, upon the opinion of ~~counsel who are satisfactory to~~ Xxxxx & Wood, counsel for the ~~Underwriters with respect~~ Agents, delivered pursuant to ~~the transactions contemplated hereby;~~ subsection (a)(2) hereof and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials.

Appears in 1 contract

Samples: Distribution Agreement (Comdisco Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Xxxxxxx, ~~Senior Counsel of~~ -------------------------- special counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware~~Maryland. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus. (iii) Texas HCP, Inc. has been duly incorporated and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware. (C) Each~~ its incorporation, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; all of the ~~Company~~ issued and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of ~~each Significant Subsidiary~~ such subsidiary have been duly and validly authorized and ~~issued~~ issued, and are fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-~~non- assessable, and, to the best of such counsel's knowledge and information are ~~directly or indirectly~~ owned by the ~~Company~~ Company, directly or through subsidiaries, free and clear of any ~~perfected security interest and~~mortgage, ~~to the knowledge of such counsel~~pledge, ~~any other security interests~~lien, ~~claims~~encumbrance, ~~liens~~ claim or ~~encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~equity. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such Indenture has been duly authorized~~due authorization, ~~executed~~ execution and ~~delivered~~ delivery thereof by the Trustee) ~~constitutes~~ is a legally valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (Gvi) The Notes are in due and proper form and have been duly authorized by the Company and, when ~~issued,~~ authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, the Notes will have been duly executed and delivered by, and will constitute valid and ~~legally~~ binding obligations of of, the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting ~~enforcement~~ the rights of ~~creditors’ rights generally~~ creditors or by general equity principles ~~(regardless of whether enforceability is considered in a proceeding in equity or at law),~~ and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~certain additional customary exceptions, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The ~~statements~~ Notes and the Indenture conform in all material respects to the respective descriptions thereof contained in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)Prospectus. (Iviii) The Indenture is has been duly qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is has been declared effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge and information, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act and no proceedings ~~for that purpose~~ therefor have been initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) The Registration ~~Statement~~Statement at the time it became effective and at the Representation Date, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing appeared on its face to ~~the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied~~ comply as to form in all material respects with the requirements of for registration statements on Form S-3 under the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each~~ 1933 Act Regulations; it being understood that such counsel need express no opinion with respect to documents incorporated by reference therein except as set forth in paragraph (xiv) below, the Form T-1 or the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Registration Statement. In passing upon the compliance as to form of ~~those Acts~~the Registration Statement, such counsel may assume that the statements made and incorporated by reference therein are true, correct and complete. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus~~, other than those disclosed therein~~. (Mxii) ~~Neither~~ The issue and the ~~execution~~ sale of the Securities and ~~delivery of this Agreement, nor~~ the ~~consummation~~ compliance by the Company with the provisions of ~~the transactions contemplated by~~ this Agreement and the ~~Notes nor~~ Indenture, and the ~~incurrence~~ consummation of the ~~obligations~~ transactions therein contemplated, will ~~conflict with~~ not result in a breach or violation of any material term or provision of, or constitute a ~~breach of, or~~ default ~~under, any indenture or other agreement or instrument to which~~ under the ~~Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth~~ Material Agreements (as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to defined in such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiaryopinion); nor will such action result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ by-laws of the ~~Company~~Company or, to the best of such counsel's knowledge, result in any material violation of any statute or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that such counsel need express no opinion under federal securities laws except as expressly otherwise provided in this Section 5(a)(1), and no opinion under state securities laws (including real estate syndication laws) or any antifraud laws. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxiii) No ~~consent,~~ approval, authorization, consent, order or decree of any court or governmental authority or agency ~~or body including the SEC~~ is required for the consummation by the Company of the transactions contemplated by this ~~Agreement~~Agreement or in connection with the sale of Notes hereunder, except such as may have been obtained or rendered, as the case may be, or as may be required under the ~~Blue Sky laws of any jurisdiction~~ 1933 Act, the 1933 Act Regulations, the 1939 Act or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~state securities laws. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder~~ (other than the financial statements and other financial and statistical ~~information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters~~ data and ~~other than the Statements of Eligibility on Form T-1~~ related schedules included or incorporated by reference therein, as to which no opinion need be rendered)) at the time it was filed with the Commission, appeared on its face to comply as to form in all material respects with the 1934 Act and the 1934 Act Regulations. In ~~rendering~~ passing upon compliance as to form of such ~~opinion~~documents, such counsel may ~~rely~~ assume that the statements made therein are true, correct and complete. (Axv) The statements set forth in the Prospectus Supplement under the caption "Federal Income Tax Consequences", insofar as to such statements constitute matters ~~involving~~ of law, summaries of legal matters, documents or proceedings, or legal conclusions, are accurate in all material respects. (xvi) The Company is not an "investment company" within the ~~application~~ meaning of ~~laws~~ the Investment Company Act of ~~any jurisdiction other than the State of Minnesota or the United States~~1940, as amended. Xxxxxx & Xxxxxxx shall also deliver to the ~~extent deemed proper~~ Agents a favorable opinion to the effect that the Company has been organized in conformity with the requirements for qualification as a real estate investment trust and ~~specified~~ its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code, in ~~such opinion, upon the opinion of counsel who are~~ form and substance satisfactory to counsel for the ~~Underwriters with respect~~ Agents and subject to customary assumptions, limitations and exceptions acceptable to counsel for the ~~transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials~~Agents.

Appears in 1 contract

Samples: Distribution Agreement (Health Care Property Investors Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Sidley Austin LLP, ~~Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and is ~~a validly existing corporation~~ in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a whole. (Diii) ~~All~~ Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors’ qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law) including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus under the captions “Description of Debt Securities” and “Description of the Notes”. (vi) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or~~ moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting ~~enforcement of~~ creditors’ rights generally ~~or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) including concepts of commercial reasonableness, good faith and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay~~ fair dealing and the possible unavailability of specific performance or ~~prohibit~~ injunctive relief; and the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~0000 Xxx. (Gvii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the ~~Company. (N) To~~ Company or any Applicable Laws or any order known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including the SEC is required for the consummation by~~ having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. As used herein, the term “Applicable Laws” means those state laws of the State of New York and federal laws of the United States that, in such counsel’s experience and without independent investigation, are normally applicable to transactions of the type contemplated by this ~~Agreement, except such as may be required under~~ Agreement (provided that the ~~Blue Sky~~ term “Applicable Laws” shall not include federal or state securities or blue sky laws of relating to disclosure or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA in connection with~~ thereunder (including, without limitation, the ~~purchase and distribution of~~ 1933 Act, the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange 1934 Act and the ~~Exchange~~ 1939 Act and the respective regulations ~~thereunder (other than financial statements and other financial and statistical information included therein~~thereunder), ~~other than statements furnished in writing to the Company by~~ any antifraud or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered~~similar laws). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The~~ At each Closing, the Placement Agent shall receive the opinion of ~~Xxxxxxxx X. Xxxx~~Frank Hariton, ~~Senior Counsel of the Company~~Esq., ~~or another of the Company’s lawyers satisfactory~~ counsel to txx Xxxxxxx, xddressed to the ~~Underwriters, dated~~ Placement Agent and the ~~Closing Date~~ Subscribers substantially to the effect that: (A) The Company ~~has been duly incorporated and~~ is a corporation duly incorporated, validly existing ~~corporation~~ and in good standing under the laws of the State of ~~Delaware~~Nevada. (B) The Company has the requisite corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate~~ perform its ~~properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company~~ obligations under the ~~Bank Holding Company Act~~ Transaction Documents including the issuance of ~~1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact~~ the ~~business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank~~Agent Shares, the ~~“Significant Subsidiaries”) is a duly organized~~ Notes, the Shares, the Agent Warrants and ~~validly existing corporation~~ the Warrants in ~~good standing under~~ accordance with the ~~laws~~ terms thereof. The execution and delivery of the ~~State~~ Transaction Documents as by the Company, the performance of ~~Delaware~~the obligations of the Company thereunder and the consummation by it of the transactions contemplated therein have been duly authorized by the Company's Board of Directors. (C) ~~Each~~ The issuance and sale of the ~~Company~~ Units, the Notes, the Agent Shares, the Shares, the Agent Warrants and the ~~Significant Subsidiaries is~~ Warrants has been duly ~~qualified~~ authorized, and when issued and paid for, the Units, the Shares, the Notes, the Agent Warrants, the Warrants and the Agent Shares will be validly issued, fully paid and non-assessable and free of all liens, encumbrances and preemptive rights with respect to ~~do business~~ the issue thereof. The Conversion Shares, the Warrant Shares and ~~is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the ~~failure to so qualify would not have any material adverse effect~~ Common Stock issuable upon ~~the business, condition or properties~~ exercise of the ~~Company~~ Agent Warrants, are duly authorized and ~~its subsidiaries~~reserved for issuance, ~~taken as a whole~~and when issued and paid for, the Conversion Shares, the Warrant Shares and all securities underlying the Agent Warrants, will be validly issued, fully paid and non-assessable and free of all taxes, liens, charges and preemptive rights with respect to the issue thereof. (D) ~~All~~ Based in part upon, and subject to the accuracy as to factual matters of, the Subscribers' representations in Article II of the ~~outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and~~ Subscription Agreement, the Units may be issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in~~ Subscribers pursuant to the ~~Final Prospectus~~Transaction Documents without registration under the 1933 Act. (E) ~~This Agreement has~~ No authorization, approval, consent, filing or other order of any federal or state governmental body, regulatory agency, or to our knowledge, any court, is required to be obtained by the Company for the issuance and sale of the Units, the Notes, the Agent Shares, the Agent Warrants, the Shares and the Warrants as contemplated by the Transaction Documents, except as have been ~~duly and validly authorized, executed and delivered~~ made or will be made by the Company. (F) ~~The Indenture has been duly authorized~~To his knowledge, ~~executed and delivered~~ there is no action, suit, proceeding, inquiry or investigation before or by ~~the Company and (assuming such Indenture has been duly authorized~~any court, ~~executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable~~ public board or body or any governmental agency or self-regulatory organization pending or threatened against the Company ~~in accordance with~~ or any of its ~~terms, except as enforcement thereof may~~ subsidiaries or any of the properties of the Company or any of its subsidiaries which might reasonably be ~~limited~~ expected to prevent or materially adversely affect the transactions contemplated by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the ~~making of payments outside the United States~~Transaction Documents. (G) The ~~Notes have been duly authorized and~~execution, ~~when issued, authenticated~~ delivery and ~~delivered pursuant to~~ performance by the ~~provisions of this Agreement and the Indenture against payment~~ Company of the ~~consideration therefor~~Transaction Documents, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated ~~by this Agreement~~ thereby and the ~~Notes nor~~ compliance by the ~~incurrence of~~ Company with the ~~obligations therein contemplated~~terms thereof does not violate, ~~will~~ conflict with or constitute a ~~breach of~~default under the Company's Articles of Incorporation, the Notes, the By-Laws or ~~default under~~to our knowledge any other material contract, ~~any indenture or other~~ agreement ~~or instrument to~~ arrangement by which the Company ~~or any Significant Subsidiary~~ is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound~~, the breach of which would have a material adverse effect on the financial condition~~ . (H) The authorized capital stock of the Company ~~and its subsidiaries, taken~~ as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the ~~provisions of the Restated Certificate of Incorporation or Bylaws of the Company.~~ date hereof (~~N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required~~ before giving effect to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement~~, except such~~ ) is as ~~may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ set forth in ~~connection with the purchase and distribution of the Notes by the Underwriters~~Schedule 2(c) hereto. (PI) ~~Each document filed~~ To such counsel's knowledge, other than as set forth in Schedule 2(c) or any other Schedule hereto (i) there are no outstanding warrants, options, agreements, convertible securities, preemptive rights (or similar rights including, but not limited to, rights of first refusal), or other commitments pursuant to which the ~~Exchange~~ Company (and/or any of its subsidiaries) is, or may become, obligated to issue any shares of its capital stock or other securities of the Company, and (ii) no person has any anti-dilution rights and/or rights of first refusal. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and to such counsel's knowledge have not been issued in violation of the preemptive rights of any securityholder of the Company. The offers and sales of such securities were either registered under the 1933 Act and ~~incorporated by reference in~~ applicable state securities laws or exempt from such registration requirements and no person to our knowledge has any matured and/or unmatured rescission rights. (J) Nothing has come to the ~~Final Prospectus complied when filed as~~ attention of such counsel to ~~form in all~~ cause it to have reason to believe that any such documents contained any untrue statement of a material ~~respects with~~ fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the ~~Exchange Act and~~ statements therein not misleading (except for the ~~Exchange Act regulations thereunder (other than~~ financial ~~statements~~ statements, notes thereto and other financial information and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference data contained therein, as to which ~~no opinion need be rendered). In rendering such opinion,~~ such counsel ~~may rely~~ need express no opinion). (AK) ~~as to matters involving~~ To the ~~application~~ knowledge of ~~laws~~ such counsel, there have been no claims asserted against the Company and/or any of ~~any jurisdiction other than the State of Minnesota or the United States,~~ its subsidiaries relating to the ~~extent deemed proper and specified in such opinion~~potential infringement of or conflict with any patents, ~~upon the opinion~~ trademarks, copyrights or trade secrets of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsothers.

Appears in 1 contract

Samples: Placement Agency Agreement (Eclickmd Inc)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series U Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~At the Closing Date, ~~Senior~~ Company Counsel ~~of the Company, or another of the Company’s lawyers satisfactory~~ shall have furnished to ~~the Underwriters~~you an opinion, dated the Closing ~~Date~~ Date, in form and substance satisfactory to you, to the effect that: (Ai) ~~The~~ the Company has been duly incorporated and is a validly existing as a corporation ~~in good standing~~ under the laws of the State of ~~Delaware. (B) The Company has the corporate~~ Washington, with power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final Prospectus~~Prospectus and to execute and deliver, and ~~is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956~~perform its obligations under, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bankthis Agreement, the ~~“Significant Subsidiaries”) is a duly organized~~ Indenture and ~~validly existing corporation in good standing under~~ the ~~laws of the State of Delaware. (C) Each of~~ Securities; the Company ~~and the Significant Subsidiaries~~ is duly qualified as a foreign corporation to do transact business and is in good standing in each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material~~ substantial properties or ~~conducts any material business~~in which the conduct of its business requires such qualification, except where the failure to so qualify or be in good standing would not have ~~any~~ a material adverse effect ~~upon~~ on the ~~business,~~ financial condition ~~or properties~~ of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole.; (Dii) ~~All~~ to the best of such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the ~~outstanding~~ Company or any of its subsidiaries is the subject that, if determined adversely to the Company or that subsidiary, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated; (iii) the Company has an authorized capitalization as set forth in the Prospectus and all of the issued shares of capital stock of ~~each Significant Subsidiary~~ the Company have been duly and validly authorized and issued and are fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus.~~; (Eiv) ~~This~~ this Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company.; (Fv) ~~The~~ the Securities have been duly authorized and executed by the Company and, when authenticated in the manner provided for in the Indenture, and issued and delivered against payment therefor pursuant to this Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, except as may be limited by the Exceptions, and will be entitled to the benefits of the Indenture; and the Securities conform to the description thereof in the Prospectus; (vi) the Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding ~~agreement~~ instrument of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, except as ~~enforcement thereof~~ may be limited by ~~bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ the Exceptions; the Indenture conforms to ~~or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered~~ the description thereof in ~~a proceeding in equity or at law),~~ the Prospectus; and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States.~~1939 Act; (Gvii) ~~The Notes have been duly authorized and, when issued, authenticated~~ the issuance and ~~delivered pursuant to~~ sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this ~~Agreement~~ Agreement, and the ~~Indenture against payment~~ consummation of the ~~consideration therefor~~transactions herein and therein contemplated, will ~~constitute valid and legally binding obligations~~ not conflict with or result in a breach or violation of any of the ~~Company~~terms or provisions of, ~~enforceable against~~ or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in ~~accordance with their terms~~any violation of the provisions of the Organizational Documents or any statute, ~~except as enforcement thereof may be limited by bankruptcy~~rule, ~~insolvency, reorganization, moratorium~~ regulation or other ~~laws relating~~ law, or any order or judgment known to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, ~~no stop order suspending~~ of any court or governmental agency or body having jurisdiction over the ~~effectiveness of the Registration Statement, as amended,~~ Company or any ~~notice under Rule 401(g)(2) that would prevent~~ of its ~~use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and~~ subsidiaries or any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective ~~effective~~ properties; (viii) the Oregon Commission Order is in full force and effect and not the subject of any appeal or ~~issue dates (~~other ~~than financial statements~~ proceeding and ~~other financial and statistical information contained therein, other than statements furnished in writing~~ is sufficient to permit the Company to enter into and perform the transactions contemplated by this Agreement, the Securities and the Indenture; and no other filing with, or ~~on behalf~~ consent, approval, authorization, order, registration or qualification of, any court or governmental agency or body having jurisdiction over the Company or any of ~~an Underwriter~~ its properties is required for the issuance and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements sale of the Securities ~~Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal~~ or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this AgreementIndenture, except such as have been obtained under the 1933 Act and the 1939 Act, such has been made with the Washington Utilities and Transportation Commission and such filings, consents, approvals, authorizations, orders, registrations or qualifications as may be required under ~~the Blue Sky~~ state securities or blue sky laws ~~of any jurisdiction or regulations adopted by FINRA~~ in connection with the purchase and distribution of the ~~Notes~~ Securities by ~~the Underwriters.~~you; and (Pix) ~~Each document~~ the Registration Statement, at the Effective Date, and the Prospectus, at the time it was filed with the SEC pursuant to Rule 424(b) under the ~~Exchange~~ 1933 Act (except in each case as to financial statements and other financial and statistical data contained or incorporated by reference ~~in the Final Prospectus~~ therein, upon which such counsel need not pass), complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ requirements of the 1933 Act and the ~~Exchange~~ 1939 Act and the respective rules and regulations ~~thereunder~~ of the SEC thereunder; each Incorporated Document as originally filed pursuant to the 1934 Act (~~other than~~ except as to financial statements and other financial and statistical ~~information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included~~ data contained or incorporated by reference therein, upon which such counsel need not pass) complied as to form when so filed in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC thereunder; the Registration Statement has become, and on the Closing Date is, effective under the 1933 Act and, to the best of such counsel's knowledge, no proceedings for a stop order with respect thereto are threatened or pending under Section 8 of the 1933 Act; and nothing has come to the attention of such counsel that has caused it to believe that the Registration Statement (except as to financial statements and other financial and statistical data contained or incorporated by reference therein, upon which ~~no opinion~~ such counsel need not pass), at the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be ~~rendered~~stated therein or necessary to make the statements therein not misleading or that the Prospectus (except as to financial statements and other financial and statistical data contained or incorporated by reference therein, upon which such counsel need not pass), at the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel ~~may rely~~ (A) may rely as to matters involving the application of the laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States, to the extent deemed proper and specified in such opinion~~New York, upon the opinion of ~~counsel who are satisfactory~~ Underwriter's Counsel rendered pursuant to ~~counsel for the Underwriters with respect to the transactions contemplated hereby; and~~ Section 5(b) hereof, (B) may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries~~ public officials and ~~public officials~~(C) may state that, for purposes of such opinion, it is only expert on (x) the laws of the State of Washington, (y) solely to the extent set forth therein with respect to paragraph (viii) above, the laws of the State of Oregon and (z) the laws of the United States of America.

Appears in 1 contract

Samples: Underwriting Agreement (Cascade Natural Gas Corp)

Opinion of Company Counsel. ~~The~~ At each Preferred Closing, the Placement Agent shall receive the opinion of Wilson, Sonsini, Xxxxxxxx ~~X. Xxxx~~& Xxxxxx, ~~Senior Counsel of~~ Professional Corporation, counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ addressed to the ~~Underwriters, dated~~ Placement Agent and the ~~Closing Date~~ Subscribers substantially to the effect that: (A) The Company ~~has been duly incorporated and~~ is a corporation duly incorporated, validly existing ~~corporation~~ and in good standing under the laws of the State of Delaware. The Company is duly qualified as a foreign corporation to do business and is in good standing in the State of California. (B) The Company has the requisite corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate~~ perform its ~~properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company~~ obligations under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo BankPlacement Agency Agreement, the ~~“Significant Subsidiaries”) is a duly organized~~ Subscription Agreement, the Series B Designation, the Warrant and ~~validly existing corporation in good standing under~~ the ~~laws~~ Registration Rights Agreement (collectively, the "Transaction Documents"), including issuance of the ~~State~~ Preferred Shares and the Warrants in accordance with the terms thereof. The execution and delivery of ~~Delaware. (C) Each~~ the Transaction Documents by the Company, the performance of the obligations of the Company thereunder and the ~~Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein~~ consummation by it ~~owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties~~ of the ~~Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary~~ transactions contemplated therein have been duly ~~and validly~~ authorized ~~and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned~~ by the ~~Company free and clear~~ Company's Board of ~~any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances~~Directors. The ~~Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has~~ Transaction Documents have been duly ~~and validly authorized,~~ executed and delivered by the Company. (FC) The ~~Indenture~~ issuance and sale of the Preferred Shares and the Warrants has been duly authorized, ~~executed~~ and ~~delivered~~ when issued and paid for in accordance with the terms of the Placement Agency Agreement, the Preferred Shares will be validly issued, fully paid and non-assessable and free of all liens, encumbrances and preemptive rights with respect to the issue thereof. The Common Stock issuable upon the conversion of the Preferred Shares (the "Conversion Shares") and the Common Stock issuable upon the exercise of the Warrants (the "Warrant Shares") are duly authorized and reserved for issuance in accordance with the Placement Agency Agreement, the Series B Designation and the Warrants, and when issued and paid for in accordance with the Placement Agency Agreement, the Series B Designation and the Warrants, the Conversion Shares and the Warrant Shares will be validly issued, fully paid and non-assessable and free of all taxes, liens, charges and preemptive rights with respect to the issue thereof. (D) Based in part upon, and subject to the accuracy as to factual matters of, the Subscribers' representations in Article II of the Subscription Agreement, the Preferred Shares and the Warrants may be issued to the Subscribers pursuant to the Transaction Documents without registration under the Securities Act of 1933, as amended. (E) No authorization, approval, consent, filing or other order of any Federal or state governmental body, regulatory agency, self-regulatory organization or stock exchange or market, or to our knowledge, any court, is required to be obtained by the Company to enter into and ~~(assuming such Indenture has been duly authorized, executed~~ perform its obligations under the Transaction Documents or for the issuance and ~~delivered~~ sale of the Preferred Shares and the Warrants as contemplated by the ~~Trustee) constitutes a valid and legally binding agreement of~~ Transaction Documents, except such as have been made or will be made by the Company. (F) To our knowledge, ~~enforceable~~ there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body or any governmental agency or self-regulatory organization pending or threatened against the Company ~~in accordance with~~ or any of its ~~terms, except as enforcement thereof may~~ subsidiaries or any of the properties of the Company or any of its subsidiaries which might reasonably be ~~limited~~ expected to prevent the transactions contemplated by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the ~~making of payments outside the United States~~Transaction Documents. (G) The ~~Notes have been duly authorized and~~execution, ~~when issued, authenticated~~ delivery and ~~delivered pursuant to~~ performance by the ~~provisions of this Agreement and the Indenture against payment~~ Company of the ~~consideration therefor~~Transaction Documents, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated ~~by this Agreement~~ thereby and the ~~Notes nor~~ compliance by the ~~incurrence of~~ Company with the ~~obligations therein contemplated~~terms thereof does not violate, ~~will~~ conflict with or constitute a ~~breach of~~default under the Restated Certificate, Series B Designation, the Bylaws or ~~default under~~any other material contract, ~~any indenture or other~~ agreement ~~or instrument to~~ arrangement by which the Company ~~or any Significant Subsidiary~~ is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Placement Agency Agreement (Intraware Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx, Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers~~ reasonably satisfactory to the ~~Underwriters~~Purchasing Agent, ~~dated the Closing Date~~ to the effect that: (Ai) ~~The~~ Each of the Company and the Bank has been duly incorporated and is ~~a validly~~ an existing corporation or banking corporation, respectively, in good standing under the laws of the State of ~~Delaware. (B) The~~ New York, and the Company has the corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Eii) ~~This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The~~ Each Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (~~assuming~~ iii) The Notes have been duly authorized and established by the Company in conformity with the applicable Indenture, and when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (iv) regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Purchasing Agent, in accordance with this Agreement, have been obtained or made (except that such counsel need express no opinion with respect to state securities laws). (v) This Agreement has been duly authorized, executed and delivered by the ~~Trustee~~Company. (vi) ~~constitutes a valid~~ The execution and ~~legally binding agreement~~ delivery by the Company of the ~~Company~~Indentures did not, ~~enforceable against~~ and of this Agreement do not, and the ~~Company~~ completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the performance by the Company of its ~~terms~~obligations under the Indentures, this Agreement and such Note will not, violate the Company’s Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as ~~enforcement thereof may be limited~~ performance by the Company of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be renderedrights). (Ivii) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness Each part of the Registration Statement, ~~as amended~~when such part became effective, ~~or any notice under Rule 401(g)(2) that would prevent its use, has been issued under~~ and the ~~Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final~~ Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference data therein, as to which such counsel need express no ~~opinion need~~ opinion) appeared on their face to be ~~rendered) complied as to form~~ appropriately responsive, in all material respects ~~with~~ relevant to the offering of the Notes, to the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts. (L) To~~ the SEC thereunder; further, nothing which came to such counsel’s ~~knowledge~~attention in the course of such counsel’s review (as described in such opinion) has caused such counsel to believe that, ~~there are~~ insofar as relevant to the offering of the Notes, any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no ~~legal~~ opinion), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental ~~proceedings pending~~ proceeding instituted or threatened ~~which are~~ against the Company or the Bank that would be required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract Prospectus and is ~~set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~not so disclosed, ~~or any other indenture or material agreement or instrument known to such counsel~~ and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary does not know of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there documents that are ~~no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents~~ required ~~to be described or referred to in the Registration Statement and the Final Prospectus or~~ to be filed as exhibits to the Registration Statement ~~other than those described or referred to therein or~~ and are not so filed or ~~incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree~~ of any ~~court or governmental agency or body including~~ documents that are required to be summarized in the ~~SEC is required~~ Prospectus and are not so summarized. Such counsel may state that such counsel does not assume any responsibility for the ~~consummation by the Company~~ accuracy, completeness or fairness of the ~~transactions contemplated by this Agreement,~~ statements contained in the Registration Statement or the Prospectus except ~~such as may be required~~ for those made under the ~~Blue Sky laws~~ captions “Description of Senior Debt Securities and Senior Subordinated Debt Securities”, “Plan of Distribution”, “Description of Medium-Term Notes” and “Plan of Distribution of Medium-Term Notes” in the Prospectus insofar as they relate to provisions of documents therein described and that such counsel does not express any ~~jurisdiction~~ opinion or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant~~ belief as to the ~~Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than~~ financial statements ~~and~~ or other financial and statistical ~~information included therein, other than statements furnished~~ data contained in ~~writing~~ the Registration Statement or the Prospectus or as to the ~~Company by or on behalf~~ statements of eligibility of the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)~~Trustees. In ~~rendering~~ providing such opinion, such counsel may ~~rely (A~~assume, in connection with the opinion set forth in paragraph 5(a)(1)(iii) as above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to ~~matters involving~~ each Note, that such Note will conform to the ~~application~~ form of ~~laws~~ Note examined by such counsel. Such counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or breach of any ~~jurisdiction other than~~ agreement or instrument then binding on the Company. Such counsel may state in rendering the opinion set forth in paragraph 5(a)(1)(iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of ~~Minnesota or the United States, to the extent deemed proper and specified in~~ New York rendering a judgment on such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers Note would be required under Section 27 of the ~~Company~~ New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated, and ~~its subsidiaries and public officials~~such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.

Appears in 1 contract

Samples: Distribution Agreement (Bank of New York Co Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxxx, -------------------------- Esq., Senior Vice President, General Counsel and Secretary of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary had been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors' qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances.~~ . (iv) The ~~Company’s~~ Company has an authorized ~~equity~~ capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fvi) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented under the heading "Description of Debt Securities" and "Description of the Notes". (vii) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding ~~agreement~~ instrument of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, moratorium or and other laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law), ; and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~1939 Act. (Gviii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oix) No consent, approval, authorization, ~~order~~ order, registration or ~~decree~~ qualification of or with any such court or governmental agency or body ~~including the SEC~~ is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any Terms Agreement or the Indenture, except such consents, approvals, authorizations, registrations or qualifications as may be required under the 1933 Act and the 1939 Act and those under state securities, Blue Sky ~~laws of any jurisdiction~~ or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~foreign laws. (Px) ~~Each document filed pursuant~~ To the best of such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which are probable to result in an adverse determination and which, if determined adversely to the ~~Exchange Act and~~ Company or any of its subsidiaries, would have a material adverse effect on the consolidated financial position or the annual pre-tax consolidated results of operations of the Company; and, to the best of such counsel's knowledge, without special inquiry, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (xi) To the best of such counsel's knowledge, all contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be incorporated by reference into the Prospectus or described in the ~~Final~~ Registration Statement or the Prospectus ~~complied~~ have been filed or incorporated by reference or described as required. (xii) The Registration Statement has been declared effective under the 1933 Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (xiii) The Registration Statement and the Prospectus, or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and related schedules therein and other financial data or the Statement of Eligibility on Form T-1 of the Trustee under the Indenture, as to which such counsel need express no opinion), when ~~filed~~ the Registration Statement became effective complied, and as of the date hereof comply, as to form in all material respects with the ~~Exchange~~ requirements of the 1933 Act and the ~~Exchange~~ 1939 Act and the rules and regulations ~~thereunder~~ of the Commission thereunder. (xiv) The information in the Prospectus under the caption "Description of the Notes", "Description of Debt Securities", and information, if any, in the Prospectus under the caption "Certain United States Federal Income Tax Considerations" (or similar caption), to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel or by attorneys under the supervision of such counsel and is correct in all material respects. (xv) The documents incorporated by reference into the Registration Statement and the Prospectus or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and schedules therein and other financial ~~and statistical information included therein, other than statements furnished in writing to~~ data or the ~~Company by or on behalf of the Underwriters and other than the Statements~~ Statement of Eligibility on Form T-1 ~~included~~ of the Trustee under the Indenture, as to which such counsel need express no opinion), at the time they were filed, complied, and as of the date hereof comply, as to form in all material respects with the requirements of the 1933 Act and the 1934 Act and the rules and regulations of the Commission thereunder. In giving such opinion such counsel shall also state that in the course of his duties as General Counsel of the Company he consults with other officers of the Company as to ongoing matters, and he or an attorney under his supervision has reviewed the Registration Statement and the Prospectus and has participated in the preparation of documents incorporated by reference therein and, although such counsel has not made any other specific inquiry for the purpose of rendering this opinion and 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, no facts have come to such counsel's attention that leads him to believe that the Registration Statement or any amendment thereto (except for financial statements and schedules and other financial data included therein and for the Statement of Eligibility on Form T-1, as to which such counsel makes no statement) at the time the Registration Statement or any amendment thereto (including the filing of an Annual Report on Form 10-K with the Commission) became effective and (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms Agreement, contained an 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 not misleading or that the Prospectus or any amendment or supplement thereto (except for financial statements and schedules and other financial data included therein, as to which such counsel makes no ~~opinion need be rendered)~~statement) as of its date and at the Settlement Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In ~~rendering such opinion~~giving the opinion required by this Section 5(b)(1), such counsel ~~may~~ shall be entitled to rely ~~(A) as to matters involving the application~~ upon opinions of ~~laws~~ local counsel and tax counsel and, in respect of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, ~~to the extent deemed proper, on~~ upon certificates of ~~responsible~~ officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Agents and ~~its subsidiaries~~ he are justified in relying upon such opinions and ~~public officials~~certificates.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The~~ At each Closing, the Placement Agent shall receive the opinion of ~~Xxxxxxxx X. Xxxx~~Frank Hariton, ~~Senior Counsel of the Company~~Esq., ~~or another of the Company’s lawyers satisfactory~~ counsel to thx Xxxxxxx, xxdressed to the ~~Underwriters, dated~~ Placement Agent and the ~~Closing Date~~ Subscribers substantially to the effect that: (A) The Company ~~has been duly incorporated~~ and ~~is a~~ each of its Subsidiaries are validly existing ~~corporation~~ and in good standing under the laws of their respective places of incorporation, each have all requisite corporate power and authority necessary to own or hold its respective properties and conduct its business and each is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the ~~State~~ ownership or leasing of ~~Delaware.~~its properties or conduct of its business requires such qualification, except where the failure to so qualify or be licensed would not have a Material Adverse Effect; (B) The Company has the requisite corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate~~ perform its ~~properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company~~ obligations under the ~~Bank Holding Company Act~~ Transaction Documents including the offer, sale and issuance of ~~1956~~the Units, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo BankPreferred Shares, the ~~“Significant Subsidiaries”) is a duly organized~~ Agent Warrants and ~~validly existing corporation~~ the Warrants in ~~good standing under~~ accordance with the ~~laws~~ terms thereof. The execution and delivery of the ~~State~~ Transaction Documents by the Company, the performance of ~~Delaware. (C) Each~~ the obligations of the Company thereunder and the ~~Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein~~ consummation by it ~~owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties~~ of the ~~Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary~~ transactions contemplated therein have been duly ~~and validly~~ authorized ~~and issued and are fully paid and (except as provided in 12 X.X.X. §00 in~~ by the ~~case~~ Company's Board of ~~Xxxxx Fargo Bank) non-assessable~~Directors. Each of this Agency Agreement, the Warrants, the Agent Warrants, the Preferred Shares, and ~~are directly or indirectly owned by~~ the ~~Company free and clear of any perfected security interest and, to the knowledge of such counsel, any~~ other ~~security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has~~ Transaction Documents have been duly and validly authorized, executed and delivered by the Company (and the Company~~. (F) The Indenture has been duly authorized~~'s Subsidiaries, ~~executed~~ as applicable), and ~~delivered by~~ are valid and binding obligations of the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company~~its Subsidiaries, enforceable against ~~the Company~~ it in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to any applicable bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or other laws ~~relating~~ affecting the rights of creditors generally and to ~~or affecting enforcement of creditors’ rights generally or by~~ general equitable ~~principles~~ principles; (~~regardless~~ C) The issuance and sale of ~~whether enforceability is considered in a proceeding in equity or at law)~~the Units, the Preferred Shares, the Agent Warrants and the Warrants has been duly authorized, and ~~except further as enforcement thereof may~~ when issued and paid for, the Units, the Preferred Shares, the Agent Warrants and the Warrants will be ~~limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when~~ validly issued, ~~authenticated~~ fully paid and ~~delivered pursuant to the provisions~~ non-assessable and free of ~~this Agreement~~ all liens, encumbrances and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ preemptive rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the ~~Financial Industry Regulatory Authority~~issue thereof. The Conversion Shares, ~~Inc. (“FINRA”) as~~ the Warrant Shares and the Common Stock issuable upon exercise of the Agent Warrants, are duly authorized and reserved for issuance, and when issued and paid for, the Conversion Shares, the Warrant Shares and all securities underlying the Agent Warrants, will be validly issued, fully paid and non-assessable and free of all taxes, liens, charges and preemptive rights with respect to ~~which no opinion need be rendered)~~the issue thereof. (ID) ~~The Indenture is qualified~~ Based in part upon, and subject to the accuracy as to factual matters of, the Subscribers' representations in Article II of the Subscription Agreement, the Units may be issued to the Subscribers pursuant to the Transaction Documents without registration under the ~~Trust Indenture~~ 1933 Act. (JE) ~~The Registration Statement~~ No authorization, approval, consent, filing or other order of any federal or state governmental body, regulatory agency, or to our knowledge, any court, is ~~effective under~~ required to be obtained by the ~~Securities Act and, to~~ Company for the ~~knowledge of such counsel, no stop order suspending the effectiveness~~ issuance and sale of the ~~Registration Statement~~Units, the Agent Warrants, the Preferred Shares and the Warrants as ~~amended~~contemplated by the Transaction Documents, ~~or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose~~ except as have been ~~initiated or, to the knowledge of such counsel, threatened~~ made or will be made by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Company. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MF) Neither the execution and delivery of this Agency Agreement, the Warrants, the Agent Warrants, the Certificate of Designations, the Subscription Agreements or any other Transaction Documents used in connection with the Offering, nor compliance with the terms hereof or thereof, nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ herein or therein contemplated, ~~will~~ nor the issuance of the Warrants, the Preferred Shares, the Agent Warrants or the Conversion Shares has, nor will, conflict ~~with or constitute~~ with, result in a breach of, or constitute a default ~~under, any indenture~~ under the Articles of Incorporation or By-Laws (or other ~~agreement~~ similar documents) of the Company and/or any of its Subsidiaries, or any material contract, debt instrument, security agreement, guarantee, instrument or document known to such counsel including, but not limited to, all agreements to which the Company and/or any of its Subsidiaries is a party, or by which its or any ~~Significant Subsidiary~~ of its Subsidiaries' properties is ~~a party~~ bound or ~~bound and which constitutes a material contract and is set forth as an exhibit~~ violate any applicable law, rule, regulation, judgment, order or decree known to us of any governmental agency or court having jurisdiction over the ~~Company’s most recent Annual Report on Form 10-K~~ Company and/or any of its Subsidiaries or any ~~subsequent Quarterly Reports on Form 10-Q~~ of their respective properties or ~~Current Reports on Form 8-K~~business; (G) To the best of such counsel's knowledge, there are no claims, actions, suits, investigations or proceedings before or by any ~~other indenture~~ arbitrator, court, governmental authority or ~~material agreement or instrument known~~ instrumentality pending or, to such ~~counsel and to which~~ counsel's knowledge, threatened against or affecting the Company and/or any of its Subsidiaries or involving the properties of the Company and/or any ~~Significant Subsidiary is a party~~ of its Subsidiaries which might materially and adversely affect the business, properties or ~~bound, the breach of which would have a material adverse effect on the~~ financial condition of the Company ~~and~~ and/or any of its ~~subsidiaries~~Subsidiaries or which might materially adversely affect the transactions or other acts contemplated by this Agency Agreement or the validity or enforceability of this Agency Agreement and/or any of the Transaction Documents, ~~taken~~ except as ~~a whole,~~ set forth in or ~~violate any order or regulation known to such counsel to be applicable to~~ contemplated by the Transaction Documents; (H) The authorized capital stock of the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation as of the ~~provisions of the Restated Certificate of Incorporation or Bylaws of the Company.~~ date hereof (~~N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required~~ before giving effect to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement~~, except such~~ ) is as ~~may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ set forth in ~~connection with the purchase and distribution of the Notes by the Underwriters~~Schedule 2(c) hereto. (PI) ~~Each document filed~~ To such counsel's knowledge, other than as set forth in Schedule 2(c) or any other Schedule hereto (i) there are no outstanding warrants, options, agreements, convertible securities, preemptive rights (or similar rights including, but not limited to, rights of first refusal), or other commitments pursuant to which the ~~Exchange~~ Company (and/or any of its Subsidiaries) is, or may become, obligated to issue any shares of its capital stock or other securities of the Company, and (ii) no person has any anti-dilution rights and/or rights of first refusal. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and to such counsel's knowledge have not been issued in violation of the preemptive rights of any securityholder of the Company. The offers and sales of such securities were either registered under the 1933 Act and ~~incorporated by reference in~~ applicable state securities laws or exempt from such registration requirements and no person to our knowledge has any matured and/or unmatured rescission rights. (J) Such counsel has reviewed the ~~Final Prospectus complied when filed~~ SEC Documents and the Transaction Documents and nothing has come to the attention of such counsel to cause it to have reason to believe that any such documents contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading (except for the financial statements, notes thereto and other financial information and statistical data contained therein, as to ~~form~~ which such counsel need express no opinion). (K) To the knowledge of such counsel, there have been no claims asserted against the Company and/or any of its subsidiaries relating to the potential infringement of or conflict with any patents, trademarks, copyrights or trade secrets of others. (L) The shares of Common Stock are registered under Section 12 of the 1934 Act. Since June 30, 2001, the Company has filed all reports, registration statements and other documents, together with any amendments thereto, required to be filed under the 1933 Act and the 1934 Act including, without limitation, reports on Form 10-KSB, Form 10-QSB and Form 8-K. The Company has satisfied all of its obligations to keep all of its SEC Reports effective for the benefit of any selling securityholders or otherwise. As of their respective dates, the Company's SEC Documents complied or will comply in all material respects with all rules and regulations promulgated by the ~~Exchange Act~~ SEC and did not or will not contain any untrue statements of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the ~~Exchange Act regulations thereunder (other than financial~~ statements ~~and other financial and statistical information included~~ therein, ~~other than statements furnished~~ in ~~writing to the Company by or on behalf~~ light of the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~circumstances under which they were made, ~~as to which no opinion need be rendered)~~not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified The Company is "current" in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its ~~subsidiaries and public officials~~SEC reporting requirements.

Appears in 1 contract

Samples: Placement Agency Agreement (Eclickmd Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Dodge LLP, ~~Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the ~~State~~ Commonwealth of ~~Delaware~~Massachusetts. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Registration Statement and the Prospectus, . (iii) Each Significant Subsidiary of the Company (as identified by the Company) has been duly incorporated and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware. (C) Each~~ its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; all of the ~~Company~~ issued and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding ~~shares of~~ capital stock of each such Significant Subsidiary ~~have~~ has been duly authorized and validly ~~authorized and issued and are~~ issued, is fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable, ~~and are~~ and, except for directors' qualifying shares, is owned of record and, to the best of such counsel's knowledge, beneficially by the Company, directly or ~~indirectly owned by~~ through subsidiaries, and, to the ~~Company~~ best of such counsel's knowledge, free and clear of any ~~perfected security interest and~~mortgage, ~~to the knowledge of such counsel~~pledge, ~~any other security interests~~lien, ~~claims~~encumbrance, ~~liens~~ claim or ~~encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~equity. (Eiv) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fv) The Supplemental Indenture has been duly and validly authorized, executed and delivered by the Company ~~and (assuming such Indenture has been duly authorized~~and, ~~executed and delivered~~ as amended by the ~~Trustee)~~ Supplemental Indenture, the Mortgage constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as ~~enforcement thereof~~ may be limited by bankruptcy, insolvency, ~~reorganization~~fraudulent conveyance, ~~moratorium~~ reorganization or other similar laws ~~relating to or~~ affecting enforcement of mortgagees' or other creditors’ ' rights ~~generally or~~ and by general equitable principles (~~regardless of~~ whether ~~enforceability is~~ considered in a proceeding in equity or at law)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~. (Gvi) The Notes are in due and proper form, have been duly and validly authorized for issuance, offer and sale pursuant to this Agreement and the Mortgage and, when issued, authenticated and delivered pursuant to the applicable DTE authorizations and the provisions of this Agreement and the ~~Indenture~~ Mortgage against payment of the consideration therefor, will constitute valid and ~~legally~~ binding obligations of the Company, enforceable against the Company in accordance with their terms, except as ~~enforcement thereof~~ may be limited by bankruptcy, insolvency, ~~reorganization~~fraudulent conveyance, ~~moratorium~~ reorganization or other similar laws ~~relating to or~~ affecting enforcement of mortgagee's and other creditors’ ' rights ~~generally or~~ and by general ~~equity~~ equitable principles (~~regardless of~~ whether ~~enforceability is~~ considered in a proceeding in equity or at law), and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and~~ each holder of Notes will be entitled to the benefits provided and security afforded by the Mortgage ratably with the holders of ~~the Indenture~~all other first mortgage bonds issued thereunder. (Hvii) The statements and summaries of documents in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the ~~captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “~~caption "Description of Notes~~” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein,~~ " are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)in all material respects. (Iviii) The ~~Indenture~~ Mortgage is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the SEC~~; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~. (Kx) The Registration Statement, at the ~~Final Prospectus~~ Effective Date, and ~~each amendment thereof or supplement thereto~~ the Prospectus, as of ~~their respective effective or issue dates~~ the date hereof (other than in each case financial statements and other financial ~~and~~ or statistical ~~information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ data included or incorporated by reference ~~therein~~therein and the Form T-1, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act, the 1933 Act Regulations and the ~~regulations under each of those Acts~~1939 Act Regulations. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus, other than those that are disclosed therein. (Mxii) ~~Neither~~ To the best of such counsel's knowledge, neither the Company nor any of its Significant Subsidiaries is in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in the Mortgage or any other contract, indenture, mortgage, loan agreement, note or lease identified by management as being material to the Company to which it is a party or by which it or any of them or their properties may be bound. To the best of such counsel's knowledge, the execution and delivery of this ~~Agreement~~Agreement and of the Mortgage, ~~nor~~ and the consummation by the Company of the transactions contemplated by this Agreement and the Notes ~~nor~~ and the incurrence of the obligations therein ~~contemplated,~~ contemplated will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or ~~other agreement~~ encumbrance upon any property or ~~instrument to which~~ assets of the Company or any of its Significant ~~Subsidiary is a party~~ Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or ~~bound and which constitutes a~~ other instrument identified by management as being material ~~contract and is set forth as an exhibit~~ to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel Company and to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound, the breach~~ by which it or any of them is bound or to which ~~would have a material adverse effect on the financial condition~~ any of the ~~Company and its subsidiaries, taken as a whole,~~ property or ~~violate any order or regulation known to such counsel to be applicable to~~ assets of the Company or any ~~Significant Subsidiary of any court~~such subsidiary is subject (except pursuant to the Mortgage), ~~regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary;~~ nor will such action result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ by-laws of the ~~Company~~Company or any such subsidiary or any applicable law, administrative regulation or administrative or court order or decree applicable to the Company or any such subsidiary. (Nxiii) To the best of such counsel’s 's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and the Final Prospectus~~ or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~, and the descriptions thereof or references thereto are correct~~. (Oxiv) No consent, approval, authorization, order or decree of any court or governmental agency or body ~~including the SEC~~ is required for the consummation by the Company of the transactions contemplated by this Agreement, except (i) such as have been obtained under the 1933 Act, the 1933 Act Regulations, the 1939 Act or the 1939 Act Regulations, (ii) the DTE Order, which has been obtained, and, to the best of such counsel's knowledge, is in full force and effect and is sufficient for the issuance and sale of the Authorized Notes by the Company, (iii) any Additional DTE Orders with respect to the issuance and sale of Additional Notes by the Company and (iv) such as may be required under ~~the Blue Sky laws of any jurisdiction~~ state securities or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~blue sky laws. (Pxv) Each ~~document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus~~ Incorporated Document complied when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations thereunder. (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (Axvi) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the The Company and its subsidiaries have the statutory authority, franchises, permits, easements and ~~public officials~~consents adequate to conduct the businesses in which they are respectively engaged without legal restrictions that would materially affect their ability to so conduct such business. (xvii) Neither the Company nor any of its subsidiaries is a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of such a "subsidiary company" within the meaning of the 1935 Act.

Appears in 1 contract

Samples: Distribution Agreement (Colonial Gas Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series Q Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter or directly by any Underwriter consists of such information described as such in the Blood Letters provided by such parties) under the captions “Description of the Series S Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxx X. ~~Xxxx~~Xxxxx, Senior Counsel of the ~~Company~~Bank, or ~~another of the Company’s lawyers~~ other counsel satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) ~~The~~ Each of the Company and the Bank has been duly incorporated and is ~~a validly~~ an existing corporation or banking corporation, respectively, in good standing under the laws of the State of ~~Delaware. (B) The~~ New York, and the Company has the corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company Registration Statement and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Eii) ~~This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The~~ Each Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (~~assuming~~ iii) The Notes have been duly authorized and established by the Company in conformity with the applicable Indenture, and when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Agent, in accordance with this Agreement, have been obtained or made (except that such counsel need express no opinion with respect to state securities laws). (v) This Agreement has been duly authorized, executed and delivered by the ~~Trustee~~Company. (vi) ~~constitutes a valid~~ The execution and ~~legally binding agreement~~ delivery by the Company of the ~~Company~~Indentures did not, ~~enforceable against~~ and of this Agreement do not, and the ~~Company~~ completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the performance by the Company of its ~~terms~~obligations under the Indentures, this Agreement and such Note will not, violate the Company’s Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as ~~enforcement thereof may be limited~~ performance by the Company of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be renderedrights). (Ivii) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness Each part of the Registration Statement, ~~as amended~~when such part became effective, ~~or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act~~ and ~~no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing~~ each of the ~~Final~~ MTN Prospectus ~~pursuant to Rule 424(b) has been made~~ and the CoreNotes® Prospectus as of its issue date (other than, in ~~the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement~~each case, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than~~ financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference data therein, as to which such counsel need express no ~~opinion need~~ opinion), appeared on their face to be ~~rendered) complied as to form~~ appropriately responsive, in all material respects ~~with~~ relevant to the offering of the Notes, to the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts. (L) To~~ the SEC thereunder; further, nothing which came to such counsel’s ~~knowledge~~attention in the course of such counsel’s review (as described in such opinion) has caused such counsel to believe that, ~~there are~~ insofar as relevant to the offering of the Notes, any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that each of the MTN Prospectus and the CoreNotes® Prospectus, as of its date or the date of such opinion (other than, in each case, the financial statements and other financial and statistical data therein, as to which such counsel need express no ~~legal~~ opinion), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental ~~proceedings pending~~ proceeding instituted or threatened ~~which are~~ against the Company or the Bank that would be required to be disclosed in ~~the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company~~ each of the ~~transactions contemplated by this Agreement~~ MTN Prospectus and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract CoreNotes® Prospectus and is ~~set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~not so disclosed, ~~or any other indenture or material agreement or instrument known to such counsel~~ and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary does not know of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there documents that are ~~no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents~~ required ~~to be described or referred to in the Registration Statement and the Final Prospectus or~~ to be filed as exhibits to the Registration Statement ~~other than those described or referred to therein or~~ and are not so filed or ~~incorporated by reference as exhibits thereto,~~ of any documents that are required to be summarized in each of the MTN Prospectus and the ~~descriptions thereof or references thereto~~ CoreNotes® Prospectus and are ~~correct. (O) No consent, approval, authorization, order or decree of~~ not so summarized. Such counsel may state that such counsel does not assume any ~~court or governmental agency or body including the SEC is required~~ responsibility for the ~~consummation by the Company~~ accuracy, completeness or fairness of the ~~transactions contemplated by this Agreement,~~ statements contained in the Registration Statement or each of the MTN Prospectus and the CoreNotes® Prospectus except ~~such as may be required~~ for those made under the ~~Blue Sky laws~~ captions “Description of ~~any jurisdiction or regulations adopted by FINRA~~ Senior Debt Securities and Senior Subordinated Debt Securities”, “Description of Notes”, “Plan of Distribution”, “Description of Medium-Term Notes” and “Plan of Distribution of Medium-Term Notes” in ~~connection with the purchase and distribution~~ each of the ~~Notes by~~ MTN Prospectus and the ~~Underwriters. (P) Each document filed pursuant~~ CoreNotes® Prospectus insofar as they relate to provisions of documents therein described and that such counsel does not express any opinion or belief as to the ~~Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than~~ financial statements ~~and~~ or other financial and statistical ~~information included therein, other than statements furnished~~ data contained in ~~writing~~ the Registration Statement or each of the MTN Prospectus and the CoreNotes® Prospectus or as to the ~~Company by or on behalf of the Underwriters and other than the Statements of Eligibility on~~ Form T-1 ~~included or incorporated by reference therein, as to which no opinion need be rendered)~~of each Trustee. In ~~rendering~~ providing such opinion, such counsel may ~~rely (A~~assume, in connection with the opinion set forth in paragraph 5(a)(1)(iii) as above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to ~~matters involving~~ each Note, that such Note will conform to the ~~application~~ form of ~~laws~~ Note examined by such counsel. Such counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or breach of any ~~jurisdiction other than~~ agreement or instrument then binding on the Company. Such counsel may state in rendering the opinion set forth in paragraph 5(a)(1)(iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of ~~Minnesota or the United States, to the extent deemed proper and specified in~~ New York rendering a judgment on such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers Note would be required under Section 27 of the ~~Company~~ New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated, and ~~its subsidiaries and public officials~~such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.

Appears in 1 contract

Samples: Distribution Agreement (Bank of New York Co Inc)

Opinion of Company Counsel. The ~~opinion of Xxxxxxxx X. Xxxx~~Purchaser shall have received from Hill & Barlow, ~~Senior Counsel of~~ counsel for the Company, ~~or another of~~ an opinion, dated the ~~Company’s lawyers~~ datx xx xhe Closing, in form and substance satisfactory to the ~~Underwriters~~Purchaser, ~~dated the Closing Date~~ to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a ~~validly~~ corporation duly organized, legally existing ~~corporation~~ and in corporate good standing under the laws of the ~~State~~ Commonwealth of ~~Delaware. (B) The Company~~ Massachusetts and has the requisite corporate power to own its property and ~~authority to own, lease and operate its properties~~ assets and to conduct its business as ~~described in the Final Prospectus, and~~ it is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delawarecurrently being conducted. (Ci) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, Except to the ~~knowledge~~ extent that stockholder approval is required pursuant to paragraph 2.2 above, each of ~~such counsel~~this Agreement, ~~any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as~~ the Debenture set forth in EXHIBIT A, the ~~Final Prospectus. (E) This~~ Warrant set forth in EXHIBIT B and the Registration Rights Agreement set forth in EXHIBIT D has been duly and validly authorized, executed and delivered by the Company~~. (F) The Indenture has been duly authorized~~, ~~executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ each constitutes a valid and ~~legally~~ binding agreement of the ~~Company,~~ Company and each is enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (Gii) The ~~Notes~~ Voting Agreement and Power of Attorney set forth in EXHIBIT C has been duly and validly executed and delivered by each of the shareholders who are parties thereto and constitutes a valid and binding agreement of each of such shareholders enforceable against each of such shareholders in accordance with its terms. (c) The capital stock of the Company is as follows: (i) Preferred Stock. 1,000,000 shares of Preferred Stock authorized, of which no shares are issued and outstanding. (ii) Common Stock. 25,000,000 shares of Common Stock authorized, of which 6,020,362 shares have been validly issued and are outstanding, fully paid and nonassessable. (d) The Common Stock issuable upon the conversion of the Debenture and upon exercise of the Warrant purchased under this Agreement has been duly ~~authorized~~ and validly reserved for issuance and, when issued in accordance with the Company's Restated Articles, will be validly issued, ~~authenticated~~ fully paid and ~~delivered~~ nonassessable. Except for currently outstanding options to purchase shares of the Common Stock granted to employees, consultants and directors pursuant to the ~~provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the~~ Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and's Stock Plans, to the ~~knowledge~~ best of ~~such~~ counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s 's knowledge, there are no ~~legal~~ preemptive rights or ~~governmental proceedings pending~~ options, warrants, conversion privileges, or ~~threatened which are required~~ other rights (or agreements for any such rights) outstanding to ~~be disclosed in~~ purchase or otherwise obtain any of the ~~Final Prospectus, other than those disclosed therein~~Company's securities. (Me) ~~Neither the execution~~ The execution, delivery and ~~delivery~~ performance of this ~~Agreement, nor the consummation~~ Agreement by the Company on or before the Closing and the issuance of the ~~transactions contemplated by this Agreement~~ Debenture and the ~~Notes nor the incurrence~~ Warrant pursuant thereto do not violate any provision of the ~~obligations therein contemplated~~Company's Restated Articles or Bylaws, ~~will conflict with or~~ and do not constitute a ~~breach of, or~~ default ~~under,~~ under the provisions of any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be which the Company is a party or by which it is bound, and do not violate or contravene (i) any governmental statute, rule or regulation applicable to the Company or (ii) any ~~Significant Subsidiary of any court~~order, ~~regulatory body~~writ, ~~administrative agency~~judgment, ~~governmental body~~injunction, decree, determination or ~~arbitrator having jurisdiction over~~ award which has been entered against the Company and of which such counsel is aware, the violation or contravention of which would materially and adversely affect the Company, its assets, financial condition or operations. (f) To the best of such counsel's knowledge, after due inquiry, there is no action, proceeding or investigation pending or threatened against the Company before any ~~Significant Subsidiary; nor will such action result~~ court or administrative agency that questions the validity of this Agreement, the Debenture or the Warrant or might result, either individually or in the aggregate, in any ~~violation of~~ material adverse change in the ~~provisions of the Restated Certificate of Incorporation~~ assets, financial condition or ~~Bylaws~~ operations of the Company. (Ng) ~~To such counsel’s knowledge~~All consents, ~~there are no contracts~~approvals, ~~indentures~~authorizations, ~~mortgages, loan agreements, notes, leases~~ or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits theretoorders of, and ~~the descriptions thereof~~ filings, registrations and qualifications with any federal, Massachusetts state or ~~references thereto are correct. (O) No consent, approval, authorization, order or decree of any court~~ Massachusetts local regulatory authority or governmental ~~agency or~~ body ~~including the SEC is~~ required for the consummation by the Company of the transactions contemplated by ~~this~~ the Agreement, ~~except such as may be required under the Blue Sky laws of any jurisdiction~~ have been made or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~obtained. (Ph) ~~Each document filed~~ The offer and sale of the Debenture and the Warrant are, and the issuance of the Common Stock upon conversion or exercise thereof would be, exempt from the registration requirements of the Securities Act. (i) The Voting Agreement and Power of Attorney delivered to the Purchaser pursuant to paragraph 4.7 of this Agreement is legal, valid, binding and sufficient under Massachusetts law to confer upon the ~~Exchange Act and incorporated by reference in~~ Purchaser the ~~Final Prospectus complied when filed as~~ right to ~~form in all material respects with~~ vote the ~~Exchange Act and~~ number of shares of the ~~Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to~~ Common Stock of the Company by covered thereby in any shareholder vote relating to approval of this Agreement or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated ~~hereby;~~ in this Agreement and complies with all applicable federal and Massachusetts securities laws. (Bj) ~~as to matters~~ Chapter 110D of ~~fact,~~ the General Laws of the Commonwealth of Massachusetts does not apply to the ~~extent deemed proper, on certificates of responsible officers~~ Company. Chapter 110F of the ~~Company and its subsidiaries and public officials~~General Laws of the Commonwealth of Massachusetts does not apply to either the acquisition of the Debenture or the Warrant or the acquisition by the Purchaser of Common Stock issuable upon conversion of the Debenture or exercise of the Warrant.

Appears in 1 contract

Samples: Subordinated Debenture and Warrant Purchase Agreement (PCD Inc)

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Co/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxx, ~~Senior~~ Esq., -------------------------- General Counsel of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been duly incorporated and~~ is a corporation duly organized, validly existing ~~corporation~~ and in good standing under the laws of ~~the State~~ The Commonwealth of ~~Delaware. (B) The Company has the~~ Massachusetts with corporate power and authority under such laws to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus. (ii) The Company is duly qualified to transact business as a foreign corporation and is in good standing in each jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise. (iii) The Bank is a duly organized and validly existing national banking association under the laws of the United States, continues to hold a valid certificate to do business as such and has full power and authority to conduct its business as such; and the Significant Subsidiary has the authority under its jurisdiction of organization to own, lease and operate its properties and to conduct its business. (iv) The Significant Subsidiary is duly qualified to transact business and is in good standing in each jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as ~~described in the Final Prospectus, and~~ one enterprise. (v) The Company is duly registered ~~as a financial holding company and a bank holding company~~ under the Bank Holding Company Act of 1956, as amended; ~~Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”)~~ and the Significant Subsidiary is ~~a national banking association~~ duly authorized to ~~transact the~~ conduct such banking business of in each jurisdiction in which its banking ~~under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”)~~ business is ~~a duly organized and validly existing corporation in good standing under the laws of the State of Delaware~~conducted. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Dvi) All of the outstanding shares of capital stock of ~~each~~ the Significant Subsidiary have been duly authorized and validly ~~authorized and~~ issued and are fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable; except for directors' qualifying shares, ~~and~~ all of such shares are ~~directly or indirectly~~ owned by the ~~Company~~ Company, directly or through one or more subsidiaries, free and clear of any ~~perfected~~ pledge, lien, security ~~interest and~~interest, ~~to the knowledge~~ charge, claim, equity or encumbrance of any kind; and none of such ~~counsel,~~ shares was issued in violation of the preemptive rights of any ~~other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in~~ stockholder of the ~~Final Prospectus~~Significant Subsidiary. (Evii) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fviii) The Notes have been duly authorized and, when the global certificates representing the Notes have been duly executed, authenticated and delivered in the manner provided for in the applicable Indenture, and issued and paid for in accordance with the provisions of this Agreement, the Notes will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally or by general equity principles (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, and each holder of Notes will be entitled to the benefits of the applicable Indenture. (ix) Each Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and ~~(assuming such Indenture has been duly authorized, executed and delivered~~ delivery thereof by the Trustee) , constitutes a valid and ~~legally~~ binding ~~agreement~~ obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as by bankruptcy, insolvency, reorganization, moratorium or other similar laws ~~relating to or~~ affecting enforcement of creditors’ ' rights generally ~~or by~~ and except as enforcement thereof is subject to general ~~equitable~~ equity principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) and the availability of equitable remedies, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in ~~accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium~~ foreign currency or ~~other laws relating to~~ currency units or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, ; and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is has been duly qualified under the ~~Trust Indenture~~ 1939 Act. (Jx) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) instituted or are pending or contemplated under the ~~Securities~~ 1933 Act. (Kxi) The Registration ~~Statement~~Statement and the Prospectus, excluding the ~~Final Prospectus~~ documents incorporated by reference therein, and each amendment ~~thereof~~ or supplement thereto (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion) as of their respective effective or issue dates appear on their face to have been appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations. (~~other than~~ xii) The documents incorporated by reference in the Prospectus (except for the financial statements and other financial ~~and~~ or statistical ~~information contained therein, other than statements furnished in writing to the Company by~~ data included therein or ~~on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~omitted therefrom, as to which such counsel need express no ~~opinion need be rendered) complied~~ opinion, and except to the extent that any statement therein is modified or superseded in the Prospectus), as of the dates they were filed with the SEC and as of the date hereof, appear on their face to ~~form~~ have been appropriately responsive in all material respects ~~with~~ to the requirements of the ~~Securities~~ 1934 Act and the 1934 Act Regulations. (xiii) Each authorization, approval, consent or license of any government, governmental instrumentality or court, domestic or foreign (other than under the 1933 Act, the ~~Trust Indenture~~ 1939 Act and the ~~regulations under each~~ securities or blue sky laws of ~~those Acts~~the various states), which is required for (A) the valid authorization, issuance, sale and delivery of the Notes or (B) the execution, delivery or performance of this Agreement or the Indentures by the Company has been received. (Lxiv) ~~To such counsel’s knowledge~~Such counsel does not know of any statutes or regulations, ~~there are no~~ or any pending or threatened legal or governmental ~~proceedings pending or threatened which are~~ proceedings, required to be ~~disclosed~~ described in the ~~Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement~~Prospectus that are not described as required, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments contracts or documents of a character required to be described or referred to in the ~~Registration Statement and the Final~~ Prospectus or to be filed as exhibits to the Registration Statement that are not described, referred to or filed as required. (xv) The descriptions in the Prospectus of the statutes, regulations, legal or governmental proceedings, contracts and other ~~than those~~ documents therein described are accurate and fairly discuss in all material respects the information required to be shown. (xvi) To the knowledge of such counsel, no default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to ~~therein~~ in the Prospectus or filed ~~or incorporated by reference~~ as ~~exhibits thereto, and~~ an exhibit to the ~~descriptions thereof or references thereto are correct~~Registration Statement. (Oxvii) ~~No consent~~The execution and delivery of this Agreement and the Indentures, ~~approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for~~ the consummation by the Company of the transactions contemplated herein and therein and compliance by the Company with the terms of this ~~Agreement~~Agreement and the Indentures do not and will not result in any violation of the charter or by-laws of the Company or the Significant Subsidiary and do not and will not conflict with, ~~except~~ or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Significant Subsidiary under (a) any indenture, mortgage or loan agreement or any other agreement or instrument known to such as counsel, to which the Company or the Significant Subsidiary is a party or by which it may be ~~required under the Blue Sky laws of any jurisdiction~~ bound or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which ~~no opinion need~~ any of its properties may be ~~rendered~~subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the condition (financial or otherwise)~~. In rendering such opinion~~, ~~such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota~~ earnings, business affairs or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers business prospects of the Company and its ~~subsidiaries and public officials~~subsidiaries, considered as one enterprise), (b) any existing applicable law, rule or regulation (other than the securities or blue sky laws of the various states, as to which such counsel need express no opinion), or (c) any judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or the Significant Subsidiary or any of its properties.

Appears in 1 contract

Samples: Distribution Agreement (Bankboston Corp)

Opinion of Company Counsel. ~~The~~ At each Closing Date, you shall have received the favorable opinion of ~~Xxxxxxxx X. Xxxx~~Taft, ~~Senior Counsel of~~ Xxetxxxxxx & Xollxxxxx, xxecial securities counsel for the Company, dated the Firm Shares Closing Date or ~~another of~~ the ~~Company’s lawyers~~ Optional Shares Closing Date, as the case may be, addressed to the Underwriters and in form and scope satisfactory to counsel for the Underwriters, ~~dated~~ with reproduced copies or signed counterparts thereof for each of the ~~Closing Date~~ Underwriters to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and ~~is a~~ validly existing ~~corporation~~ in good standing under the laws of the State of ~~Delaware~~Ohio, is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its properties (owned, leased or licensed), the maintenance of an office or the nature of its business makes such qualification necessary, except where the failure so to qualify would not have a Material Adverse Effect, and has full corporate power and authority and, to the best of such counsel's knowledge after due inquiry, all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies, to own, lease, license and operate its properties and to conduct its business as now being conducted as described in the Registration Statement and Prospectus; (ii) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Registration Statement and the Prospectus; all the shares of capital stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company hereunder have been duly authorized and validly issued and are fully paid and nonassessable and none of them were issued in violation of any preemptive or other right; the Shares to be issued and sold to the Underwriters by the Company hereunder have been duly authorized and, when issued, sold and delivered against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and none of them will have been issued in violation of any preemptive or, to the knowledge of such counsel after due inquiry, similar rights that entitle or will entitle any person to acquire any shares of Common Stock upon the issuance of the Shares by the Company; and the Shares and the other capital stock of the Company conform as to legal matters to the description thereof contained under the caption "Description of Securities" in the Registration Statement and the Prospectus; (iii) To such counsel's knowledge after due inquiry, the Company does not own any shares of stock or any securities of any corporation or have any equity interest in any firm, partnership, association or other entity that is required to be disclosed, and is not disclosed, in the Registration Statement and the Prospectus; (iv) The certificates evidencing the Shares are in the form approved by the Board of Directors of the Company and comply with the Code of Regulations and the Articles of Incorporation of the Company and the laws of the State of Ohio. (Bv) The Company has the corporate power and authority to ~~own, lease and operate its properties~~ enter into this Agreement and to ~~conduct its business~~ issue, sell and deliver the Shares to be sold by it to the Underwriters as ~~described in the Final Prospectus~~provided herein, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This this Agreement has been duly and validly authorized, executed and delivered by the Company~~. (F) The Indenture has been duly authorized~~, ~~executed~~ and ~~delivered by the Company~~ is a valid, legal and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally~~ binding agreement and obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement ~~thereof~~ of rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, ~~moratorium or~~ moratorium, and other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights generally or and by general equitable ~~principles~~ principles; (~~regardless~~ vi) To the best of ~~whether enforceability~~ such counsel's knowledge after due inquiry, the Company is ~~considered~~ conveying to the Underwriters good and valid title to the Shares, free and clear of any liens, encumbrances, adverse claims, security interests, or other restrictions whatsoever; (vii) To the best of such counsel's knowledge after due inquiry, there are (A) no contracts or other documents which are required to be described in or filed as exhibits to the Registration Statement or the Prospectus other than those described in or filed as exhibits thereto, (B) no legal or governmental or other proceedings or investigations pending or threatened against, or involving the assets, properties or business of, the Company, of a character required to be disclosed in the Registration Statement and Prospectus, which have not been so disclosed and properly described therein, and (C) no statutes or regulations applicable to the Company, or certificates, permits, grants or other consents, approvals, orders, licenses or authorizations from regulatory officials or bodies, required to be obtained or maintained by the Company, of a character required to be disclosed in the Registration Statement and Prospectus, which have not been so disclosed and properly described therein; (viii) Neither the execution, delivery and performance of this Agreement by the Company, nor the consummation of the transactions herein contemplated (including, without limitation, the issuance and sale by the Company of the Shares), will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in a ~~proceeding~~ breach of any term or provision of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or require consent under, or result in ~~equity~~ the creation or ~~at law)~~imposition of any lien, ~~and except further as enforcement thereof may be limited by governmental authority to limit, delay~~ charge or ~~prohibit~~ encumbrance upon any property or asset of the ~~making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered~~ Company pursuant to the terms of any agreement or instrument known to such counsel (having made due inquiry with respect thereto) to which the Company is a party or by which the Company or any of the properties or business of the Company is bound, nor will such action result in any violation of the provisions of ~~this Agreement and~~ the ~~Indenture against payment~~ Articles of Incorporation or Code of Regulations of the ~~consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the~~ Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, ~~threatened~~ any statute or any order, rule, or regulation applicable to the Company or, to the knowledge of such counsel, any court or any federal, state, local or other regulatory authority or other governmental body having jurisdiction over the Company; (ix) To the best of such counsel's knowledge after due inquiry, no consent, approval, authorization or order of, or registration or filing with, any court or governmental agency or body, domestic or foreign, is required to be obtained by or on behalf of the Company in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby (including, without limitation, the issuance and sale by the ~~SEC; and any required filing~~ Company of the ~~Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period~~ Shares), except such as may be required ~~by Rule 424(b)~~ under the Securities Act., by the National Association of Securities Dealers, Inc. or under state securities or Blue Sky laws; (Kx) To the best of such counsel's knowledge after due inquiry, and except for those instances which do not and will not have a Material Adverse Effect, the Company (a) is not in default (nor has an event occurred which, with notice or lapse time or both, would constitute a default) under, any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other material agreement or instrument to which the Company is a party or by which it or any of its properties or assets may be bound or affected, (b) is not in violation of any term or provision of its Articles of Incorporation or Code of Regulations, and, (c) is not in violation of any franchise, license, grant, permit, judgment, decree, order, statute, rule or regulation or has received any notice of conflict with the asserted rights of others in respect of intangibles necessary for the conduct of its business, where, in each case, such matter is required to be described in the Registration Statement and the Prospectus and is not described therein; (xi) The Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and ~~each amendment thereof~~ any amendments or ~~supplement~~ supplements thereto ~~as of their respective effective or issue dates~~ (other than the financial ~~statements~~ statements, and other financial and statistical ~~information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ data included ~~or incorporated by reference~~ therein, as to which no opinion need be rendered) ~~complied~~ comply as to form in all material respects with the requirements of the Securities ~~Act, the Trust Indenture~~ Act and the ~~regulations under each of those Acts.~~Rules; (Lxii) To The Registration Statement (including all post-effective amendments, of any) is effective under the Securities Act and the Rules, and, to the best of such counsel~~’s knowledge~~'s knowledge after due inquiry, ~~there~~ no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are ~~no legal or governmental proceedings~~ pending or threatened ~~which are~~ under the Securities Act; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b); (xiii) To the best of such counsel's knowledge after due inquiry, (A) the Company has good and marketable title to, or valid and enforceable leasehold estates in, the items of real and personal property stated in the Prospectus to be ~~disclosed~~ owned or leased by it, in ~~the Final Prospectus~~each case free and clear of all liens, encumbrances, and security interests, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in Prospectus and those which do not have a Material Adverse Effect, and (B) the Company owns, or possesses adequate and enforceable rights to use, the Intangibles, except as described in the Prospectus or where the lack of such ownership or possession would not have a Material Adverse Effect; and (iv) The Company is not, after giving effect to the sale of the Shares sold by it hereunder and application of the net proceeds from such sale as described in the Prospectus under the caption "Use of Proceeds", an "investment company" within the meaning of the Investment Company Act of 1940, as amended. In addition, such counsel will state that, in the course of preparation of the Registration Statement and the ~~Final Prospectus or~~ Prospectus, (X) such counsel had conferences with officials of the Company, its independent auditors, and with representative of the Representative and their counsel, and also had discussions with such officials of the Company with a view toward a clear understanding on their part of the requirements of the Securities Act and the Rules with reference to ~~be filed as exhibits to~~ the preparation of registration statements and prospectuses, and (Y) such counsel's examination of the Registration Statement ~~other than those described or referred to therein or filed or incorporated by reference as exhibits thereto,~~ and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase Prospectus and ~~distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference~~ its discussions in the ~~Final~~ above-mentioned conferences did not disclose to it any information which gives it reason to believe that the Registration Statement or the Prospectus ~~complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder~~ (other than the schedules, financial statements and other financial and statistical information ~~included therein~~as to which such counsel need express no comment or opinion) at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, ~~other than statements furnished in writing to~~ or that the ~~Company by or on behalf of the Underwriters and~~ Prospectus (other than the ~~Statements of Eligibility on Form T-1 included or incorporated by reference therein~~schedules, financial statements and other financial and statistical information as to which such counsel need express no comment or opinion) contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Such opinion ~~need~~ shall be ~~rendered)~~to such further effect with respect to other legal matters relating to this Agreement and the sale of the shares as counsel for the Underwriters may reasonably request. In rendering ~~such~~ the foregoing opinion, such counsel may rely (A) as to matters ~~involving~~ not governed by federal law or the ~~application of~~ laws of ~~any jurisdiction~~ jurisdictions in which they are admitted on opinions of other ~~than the State of Minnesota or the United States,~~ legal counsel reasonably satisfactory to the ~~extent deemed proper~~ Underwriters and ~~specified~~ their counsel and upon which, in such counsel's opinion, ~~upon~~ such counsel is justified in relying, (B) on the opinion of ~~counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and~~ Katz, Xxeexxxxxxx xxx Nortxx, xxd (BC) as to matters of ~~fact,~~ fact upon certificates of public officials and officers of the Company. Where such opinion shall state that a matter is to the ~~extent deemed proper~~best of such counsel's knowledge after due inquiry, on it shall mean actual knowledge of those attorneys who have provided substantive services in connection with the matters contemplated by this Agreement and may be based upon certificates of a responsible ~~officers~~ officer of the Company and ~~its subsidiaries~~ letters received by the Company or such counsel from other legal counsel to the Company. Copies of all such opinions and ~~public officials~~certificates shall be furnished to counsel to the Representative on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Ciao LTD Inc)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series V Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxxx & Xxxxxxxxx, ~~Senior Counsel of~~ a Professional Corporation, counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been duly incorporated and~~ is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware~~Nevada. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties ~~and to conduct its business~~ as described in the ~~Final Prospectus, and~~ Registration Statement. (iii) Each Significant Subsidiary of the Company is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware. (C) Each~~ its incorporation, has corporate power and authority to own, lease and operate its properties as described in the Registration Statement; all of the ~~Company~~ issued and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding ~~shares of~~ capital stock of each such Significant Subsidiary ~~have~~ has been duly authorized and validly ~~authorized and issued and are~~ issued, is fully paid and ~~(except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank)~~ non-assessable, and, other than with respect to Universal and ~~are directly or indirectly~~ Xxxxxxx except for directors' qualifying shares, is owned by the Company either directly or through subsidiaries; the Company owns, directly or through subsidiaries, the percentage of voting common stock of Universal that is most recently specified in the Company's filings with the SEC pursuant to the 1934 Act and 100% of the non-voting common stock and preferred stock of Universal, free and clear of any ~~perfected~~ security ~~interest and~~interest, mortgage, pledge, lien, claim or encumbrance except for rights of Universal to purchase or redeem the voting common stock, non-voting common stock and preferred stock of Universal owned by the Company pursuant to the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in~~ terms the ~~Final Prospectus~~Universal Shareholders' Agreement. (Eiv) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fv) The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a legal, valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ ' rights ~~generally~~ generally, or by general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law)~~principles, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States. (Gvi) The ~~Notes~~ Notes, in the form(s) certified by the Company as of the date hereof, have been duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity ~~principles (regardless of whether enforceability is considered in a proceeding in equity or at law)~~principles, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, ; and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “"Description of Debt Securities~~,” “Plan of Distribution (Conflicts of Interest),” “~~" and "Description of Notes~~” and “Underwriting (Conflicts of Interest),”~~ ", insofar as they purport to summarize certain provisions of documents ~~or laws~~ specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)in all material respects. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to ~~the knowledge of~~ such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the SEC~~; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~. (Kx) ~~The~~ At the time the Registration ~~Statement~~Statement became effective, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) Registration Statement complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened ~~which~~ with respect to the Company that are required to be disclosed in the ~~Final~~ Prospectus, other than those disclosed therein. (Mxii) ~~Neither~~ To such counsel's knowledge, neither the Company nor any of its Significant Subsidiaries is in violation of its charter. The execution and delivery of this ~~Agreement~~Agreement and of the Indenture, ~~nor~~ and the consummation by the Company of the transactions contemplated herein and therein have been duly authorized by ~~this Agreement and~~ all necessary corporate action on the ~~Notes nor the incurrence~~ part of the ~~obligations therein contemplated,~~ Company and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or ~~other agreement~~ encumbrance upon any property or ~~instrument to which~~ assets of the Company or any of its Significant ~~Subsidiary is a party~~ Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or ~~bound and which constitutes a material contract and is set forth~~ other instrument that has been included as an exhibit to the Company~~’s most recent~~ 's Annual Report on Form 10-K ~~or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~for the year ended December 31, ~~or any other indenture or material agreement or instrument known to such counsel~~ 1993, and to which the Company or any ~~Significant Subsidiary~~ such subsidiary is a party or ~~bound,~~ by which it or any of them may be bound or to which any of the ~~breach of which would have a material adverse effect on the financial condition~~ property or assets of the Company ~~and its subsidiaries, taken as a whole~~or any such subsidiary is subject, or ~~violate~~ any ~~order~~ law, administrative regulation or ~~regulation~~ administrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, authority or body or any ~~Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or~~ arbitrator having jurisdiction over the ~~Company or any Significant Subsidiary~~Company; nor will such ~~action~~ actions result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ bylaws of the Company. (Nxiii) To the best of such counsel’s 's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and the Final Prospectus~~ or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits ~~thereto,~~ therefor and the descriptions thereof or references thereto are correct. (Oxiv) No consent, approval, authorization, order or decree of any court or governmental agency or body (including the ~~SEC~~ SEC) is required for the consummation by the Company of the transactions contemplated by this ~~Agreement~~Agreement or in connection with the sale of Notes hereunder, except such as have been obtained or rendered, as the case may be, or as may be required under state securities laws. (xv) The Notes, in the ~~Blue Sky laws~~ forms certified by the Company as of the date hereof, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture, will be excluded or exempted from the provisions of the Commodity Exchange Act, assuming the accuracy of any ~~jurisdiction~~ certificates of factual matters furnished by the Agent or ~~regulations adopted by FINRA~~ the Company in connection with the ~~purchase and distribution of the Notes by the Underwriters~~issuance thereof. (Pxvi) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus complied when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations thereunder. (~~other than financial statements~~ xvii) The information contained in the Prospectus under the captions "Certain United States Federal Income Tax Considerations" and ~~other financial and statistical~~ the information ~~included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or~~ incorporated by reference ~~therein~~in the Prospectus under the captions "Item 1. Business - Business and Properties - Marine Transportation - Governmental Regulations", ~~as to which no opinion need be rendered)~~"Item 1. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper Business - Business and ~~specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby;~~ Properties - Marine Transportation - Environmental Regulations" and ~~(B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.~~"Item

Appears in 1 contract

Samples: Current Report

Opinion of Company Counsel. The ~~opinion of Xxxxxxxx X. Xxxx~~Investors shall have received from Summit Law Group, ~~Senior Counsel of~~ PLLC, counsel for the Company, ~~or another~~ an opinion, dated as of the ~~Company’s lawyers~~ Closing, in form and substance satisfactory to the ~~Underwriters~~Investors, ~~dated the Closing Date~~ to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a corporation, validly existing ~~corporation in good standing~~ under the laws of the State of ~~Delaware. (B) The~~ Washington, and the Company has the requisite corporate power and corporate authority ~~to own, lease and operate its properties and~~ to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delawarenow being conducted. (Cb) ~~Each of the~~ The Company ~~and the Significant Subsidiaries~~ is ~~duly~~ qualified to do business ~~and is~~ in ~~good standing~~ any state or jurisdiction of the United States in ~~each jurisdiction~~ which ~~requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the failure to so qualify would ~~not~~ have ~~any~~ a material adverse effect ~~upon the business, condition~~ on its business or ~~properties of the Company and its subsidiaries, taken as a whole~~properties. (Dc) ~~All of~~ The Company has the ~~outstanding shares of capital stock of each Significant Subsidiary have been duly~~ requisite corporate power and ~~validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable~~corporate authority to execute, deliver, and ~~are directly or indirectly owned~~ perform this Agreement and the Investor Rights Agreement, as amended. All corporate action necessary for the authorization, execution and delivery by the Company ~~free~~ of this Agreement and ~~clear~~ the Investor Rights Agreement and the authorization, issuance, and delivery of ~~any perfected security interest and~~the Series C Stock being sold hereunder and the Conversion Shares has been taken, to and this Agreement and the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This~~ Investor Rights Agreement ~~has~~ have been duly and validly authorized, ~~executed and delivered by the Company. (F) The Indenture has been duly authorized~~executed, ~~executed~~ and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as ~~enforcement thereof~~ enforceability may be limited or affected by ~~bankruptcy, insolvency, reorganization, moratorium or other~~ applicable laws relating to or affecting the enforcement of creditors’ ' rights ~~generally or~~ and by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indentureequitable principles. (Hd) The ~~statements~~ Series C Stock, when issued, sold, and delivered in accordance with the ~~Final Prospectus~~ terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Articles of Incorporation and Certificate of Designation, will be duly and validly issued, fully paid, and nonassessable. (~~other than statements furnished in writing to~~ e) The authorized capital stock of the Company consists of the preferred stock, common stock and rights described in paragraphs (i), (ii) and (iii) below: (i) Preferred Stock There are 10,000,000 shares of preferred stock authorized, 4,812,074 of which have been designated as Series A Stock, all of which is outstanding, 1,552,655 of which have been designated as Series B Stock, all of which is outstanding and 2,545,430 of which have been designated as Series C Stock, none of which is outstanding. (ii) Common Stock As of Closing, there will be 200,000,000 shares of Common Stock authorized, 26,879,000 shares of which are currently outstanding. Of the authorized but unissued Common Stock, 9,624,148 shares are reserved for issuance upon the conversion of the Series A Stock, 3,105,310 are reserved for issuance upon the conversion of the Series B Stock and 2,545,430 will be reserved for issuance upon conversion of the Series C Stock; 2,879,000 shares are reserved by board action for issuance upon the exercise of warrants granted to certain investors (the "First Round Investors"); and 8,421,128 shares are reserved for issuance upon the exercise of stock options granted or ~~on behalf of an Underwriter expressly for use therein)~~ to be granted under the ~~captions “Description~~ Company's stock option plan (the "OPTION PLAN"); provided, however, that this number includes 331,550 shares that have reserved by board action for issuance upon the exercise of ~~Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport~~ warrants granted to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory AuthorityLucent Technologies f/k/a Ascend Communications, Inc. (~~“FINRA”) as to which no opinion need be rendered~~"Lucent"). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) ; and 307,974 shares that ~~would prevent its use, has been issued under the Securities Act and no proceedings for that purpose~~ have been ~~initiated or,~~ reserved by board action for issuance upon the exercise of warrants granted to ~~the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus~~ Pacific Crest Securities Inc. pursuant to ~~Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~an engagement letter executed March 16, 1999. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Series C Preferred Stock Purchase Agreement (Freei Networks Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Sxxxxx Xxxxxx LLP, ~~Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been duly incorporated~~ and each Significant Subsidiary organized under the laws of a U.S. jurisdiction is a validly existing ~~corporation~~ and in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware~~its incorporation (or, if applicable, formation or organization). (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Pricing Disclosure Package and the Final ~~Prospectus~~Supplemented Prospectus and to enter into and perform its obligations under this Agreement, the Indenture and the Securities. (iii) The Company is duly qualified to transact business as a foreign corporation and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of ~~Delaware~~Georgia. (Civ) ~~Each~~ The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This this Agreement has been duly ~~and validly authorized,~~ executed and delivered by the Company. (Fv) The execution, delivery and performance of the Indenture have been duly authorized by all necessary corporate action by the Company and the Indenture has been duly ~~authorized,~~ executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a legal, valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, ~~moratorium~~ moratorium, fraudulent transfer or other similar laws relating to or affecting enforcement of creditors’ rights ~~generally~~ generally, or by general ~~equitable~~ equity principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~. (Gvi) The ~~Notes~~ forms of the Securities filed as exhibits to the Registration Statement or a Current Report on Form 8-K comply with the requirements of the Indenture applicable thereto; the Securities have been duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this ~~Agreement~~ Agreement, the Indenture and the ~~Indenture~~ Officers’ Certificates and Company Order against payment of the consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, ~~moratorium~~ moratorium, fraudulent transfer or other similar laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States,~~ ; and each holder of ~~Notes~~ Securities will be entitled to the benefits of the Indenture. (Hvii) The ~~statements~~ information in the Pricing Disclosure Package and the Final Supplemented Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “Description of the Notes,” “Description of Debt Securities,” “~~Plan~~ Particular Terms of ~~Distribution (Conflicts of Interest),~~the Senior Debt Securities” and “Description of ~~Notes” and “Underwriting (Conflicts of Interest)~~Capital Stock,” ~~insofar as they purport~~ to ~~summarize certain provisions~~ the extent that it constitutes matters of law, summaries of legal matters, documents or ~~laws specifically referred to therein~~proceedings, ~~are accurate summaries of~~ or legal conclusions, has been reviewed by such ~~provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)”~~ counsel and ~~“Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)~~is correct in all material respects. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ nor have any proceedings ~~for that purpose have~~ therefor been initiated ~~or, to the knowledge of such counsel,~~ or threatened by the SEC; ~~and any required~~ if filing of the Final ~~Prospectus~~ Supplemented Prospectus, or any supplement thereto, is required pursuant to Rule 424(b~~) has~~ ), the Final Supplemented Prospectus, and any such supplement, shall have been ~~made~~ filed in the manner and within the time period required by Rule 424(b~~) under the Securities Act~~). (Kx) ~~The Registration Statement~~At the time it became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and related schedules and other financial ~~and statistical~~ information ~~contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ included or incorporated by reference therein), ~~as to which no opinion need be rendered)~~ complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the The execution and delivery by the Company of this Agreement, ~~nor~~ the ~~consummation~~ Indenture and the Securities, the performance by the Company of its agreements herein and therein and the incurrence by the Company of the ~~transactions contemplated~~ indebtedness to be evidenced by ~~this Agreement and~~ the ~~Notes nor the incurrence of the obligations therein contemplated,~~ Securities will ~~conflict with~~ not violate or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or ~~other agreement~~ encumbrance upon any property or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition assets of the Company ~~and its subsidiaries~~pursuant to, ~~taken as a whole~~any Material Contract, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ by-laws of the ~~Company~~Company or any applicable law or any administrative regulation or administrative or court order or decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company that is listed in the officer’s certificate attached to such opinion. For purposes of the preceding sentence, “Material Contract” shall mean each indenture, loan agreement, contract, agreement or arrangement, as each shall have been amended to the date of such opinion, filed as an exhibit to, or incorporated by reference in, the most recent Annual Report to the SEC on Form 10-K of the Company or any report filed since the date of such report with the SEC under Section 13 of the 1934 Act. (Nxii) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration ~~Statement and the~~ Statement, Pricing Disclosure Package or Final Supplemented Prospectus or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~, and the descriptions thereof or references thereto are correct~~. (Oxiii) No authorization, consent, approval~~, authorization~~, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this ~~Agreement~~Agreement or in connection with the sale of the Securities hereunder, except such as may be required under the ~~Blue Sky laws of any jurisdiction~~ 1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act Regulations or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~state securities laws. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the Registration Statement, the Pricing Prospectus and the Final Supplemented Prospectus (other than the financial statements and related schedules and other financial information included or incorporated by reference therein) complied when filed or, if amended, when so amended, as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange~~ 1934 Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsRegulations.

Appears in 1 contract

Samples: Underwriting Agreement (Newell Rubbermaid Inc)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, ~~Senior Counsel of~~ Xx., Esq., counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to the ~~Underwriters,~~ Agent a letter addressed to the Agent and dated the ~~Closing Date~~ date hereof stating his opinion to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware. (B) The~~ Iowa; and the Company ~~has the corporate power and authority to own~~is a subsidiary of MidAmerican Energy Holdings Company, ~~lease and operate its properties and to conduct its business as described in the Final Prospectus~~an Iowa corporation, ~~and is duly registered as a financial holding company and a bank holding company~~ both of which are exempt from regulation under the ~~Bank~~ Public Utility Holding Company Act of ~~1956~~1935, as amended~~; Xxxxx Fargo Bank~~, ~~National Association (“Xxxxx Fargo Bank”~~except under Section 9(a)(2) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.thereof; (Cii) ~~Each of the Company~~ this Agreement and ~~the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each ~~jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business~~Terms Agreement, ~~except where the failure to so qualify would not have any material adverse effect upon the business~~if any, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes~~ is a valid and ~~legally~~ binding agreement of ~~the Company, enforceable against~~ the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by applicable law and except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors' rights generally and general principles of equity; (iii) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action, has been duly and validly executed and delivered and is a valid instrument legally binding on the Company, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to the Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform as to legal matters with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ the orders of the FERC and the ICC referred to in Section 2(a)(xi) hereof pertaining to the Notes have been duly entered and, to the best of the knowledge of such counsel, are still in force and effect; and no further approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each of those Acts.~~1933 Act Regulations (except that such counsel need express no opinion as to the financial statements and financial or statistical data contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or Terms Agreement nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ therein contemplated, nor compliance with the terms and provisions thereof, will conflict ~~with~~ with, violate or ~~constitute~~ result in a breach ~~of, or default under~~of any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the ~~Company~~ Company, conflict with or ~~any Significant Subsidiary~~ result in a breach of any ~~court~~of the terms, ~~regulatory body, administrative agency, governmental body,~~ conditions or ~~arbitrator having jurisdiction over~~ provisions of the Articles of Incorporation or the by-laws of the Company or of any ~~Significant Subsidiary; nor will~~ material agreement or instrument known to such ~~action~~ counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encombrance of any nature whatsoever upon any of the ~~provisions of the Restated Certificate of Incorporation~~ properties or ~~Bylaws~~ assets of the Company.; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(v) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (~~other than~~ except that such counsel does not need to express any opinion as to the financial statements and financial or statistical data contained therein); (xiii) the statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by him and, as to matters of law and legal conclusion, are correct; (xiv) the Company is a public utility authorized by its Articles of Incorporation to carry on the businesses in which it is engaged, as set forth in the Prospectus; the Company has the legal right to function and operate as an electric public utility company in the States of Iowa, Illinois and South Dakota, and as a gas public utility company in the States of Iowa, Illinois, South Dakota and Nebraska; and the franchises and permits of the Company are valid and subsisting and authorize the Company to carry on the utility businesses in which it is engaged in the communities and territory covered by such franchises and permits; (xv) the descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings and contracts and other ~~financial~~ documents are accurate and ~~statistical~~ fairly present the information ~~included therein~~required to be presented; and (xvi) except as set forth in the Prospectus, (A) there are no pending legal proceedings to which the Company is a party or in which any of its property is the subject which are material to the Company, other than ~~statements furnished in writing~~ ordinary routine legal proceedings incident to the business in which the Company ~~by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~is engaged, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as there are no material pending administrative or judicial proceedings to ~~matters~~ which the Company is a party or in which any of ~~fact~~its property is the subject arising under any federal, state or local provisions regulating the discharge of materials into the environment or otherwise relating to the protection of the environment, and, to the ~~extent deemed proper, on certificates of responsible officers~~ best of the knowledge of said counsel, no such proceedings are threatened by governmental authorities; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead him to believe that the Registration Statement, at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and ~~its subsidiaries~~ at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and ~~public officials~~at the Settlement Date with respect thereto as the case may be, contains or contained an 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 not misleading or that the Prospectus as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Distribution Agreement (Midamerican Energy Financing Ii)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx Xxxxxx & Xxxxx, ~~Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company and each Significant Subsidiary has been duly incorporated (or, in the case of a Significant Subsidiary that is not a corporation, duly formed or organized, as the case may be) and is a validly existing ~~corporation~~ in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware~~its incorporation (or, if applicable, formation or organization). (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final Prospectus~~Prospectus and to enter into and perform its obligations under this Agreement, the Indenture and the Notes. (iii) The Company is duly qualified as a foreign corporation to transact business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of ~~Delaware~~Illinois. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Eiv) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fv) The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a legal, valid and ~~legally~~ binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, ~~moratorium~~ moratorium, fraudulent transfer or other similar laws relating to or affecting enforcement of creditors’ ' rights ~~generally~~ generally, or by general ~~equitable~~ equity principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~. (Gvi) The forms of the Notes filed as exhibits to the Registration Statement comply with the requirements of the Indenture applicable thereto; the Notes have been duly and validly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this ~~Agreement~~ Agreement, the Indenture and the ~~Indenture~~ Officers' Certificate against payment of the consideration therefor, will constitute valid and legally Banc One Capital Markets, Inc. Chase Securities Inc. Xxxxxxx, Xxxxx & Co. Xxxxxx Xxxxxxx & Co. Incorporated binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, ~~moratorium~~ moratorium, fraudulent transfer or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)~~, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States,~~ ; and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The ~~statements~~ information in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “"Description of Notes," "Description of Debt Securities,~~” “Plan~~ " "Particular Terms of ~~Distribution (Conflicts~~ the Senior Debt Securities," "Particular Terms of ~~Interest)~~the Subordinated Debt Securities,~~” “~~" "Description of ~~Notes”~~ Capital Stock" and ~~“Underwriting (Conflicts~~ "United States Federal Income Taxation," to the extent that it constitutes matters of ~~Interest),” insofar as they purport to summarize certain provisions~~ law, summaries of legal matters, documents or ~~laws specifically referred to therein~~proceedings, ~~are accurate summaries of~~ or legal conclusions, has been reviewed by such ~~provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)”~~ counsel and ~~“Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)~~is correct in all material respects. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the SEC~~; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~. (Kx) ~~The~~ At the time the Registration ~~Statement~~Statement became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and related schedules and other financial ~~and statistical~~ information ~~contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ included or incorporated by reference therein~~, as to which no opinion need be rendered~~) complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) ~~To such counsel’s knowledge~~The execution, ~~there are no legal or governmental proceedings pending or threatened which are required to be disclosed in~~ delivery and performance by the ~~Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery~~ Company of this Agreement, ~~nor~~ the ~~consummation~~ Indenture and the Notes, the performance by the Company of its agreements herein and therein and the incurrence by the Company of the ~~transactions contemplated~~ indebtedness to be evidenced by ~~this Agreement and~~ the Notes ~~nor the incurrence of the obligations therein contemplated,~~ will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or ~~other agreement~~ encumbrance upon any property or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition assets of the Company ~~and its subsidiaries~~pursuant to, ~~taken as a whole, or violate~~ any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; Material Contract nor will such action result in any violation of the provisions of the ~~Restated Certificate of Incorporation~~ charter or ~~Bylaws~~ by-laws of the ~~Company. (N) To such counsel’s knowledge~~Company or any law, ~~there are no contracts, indentures, mortgages, loan agreements, notes, leases~~ administrative regulation or ~~other instruments~~ administrative or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, court order or decree known to such counsel to be applicable to the Company of any court or governmental ~~agency~~ agency, authority or body ~~including~~ or any arbitrator having jurisdiction over the ~~SEC is required for the consummation by the Company~~ Company. For purposes of the ~~transactions contemplated by this Agreement~~preceding sentence, ~~except such~~ "MATERIAL CONTRACT" shall mean each indenture, loan agreement, contract, agreement or arrangement, as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant each shall have been amended to the ~~Exchange Act and incorporated by reference in the Final Prospectus complied when~~ date of such opinion, filed as ~~to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein~~an exhibit to, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included~~ or incorporated by reference ~~therein~~in, ~~as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving~~ the ~~application of laws of any jurisdiction other than the State of Minnesota or the United States,~~ most recent Annual Report to the ~~extent deemed proper and specified in such opinion~~SEC on Form 10-K Banc One Capital Markets, ~~upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact~~Inc. Chase Securities Inc. Xxxxxxx, ~~to the extent deemed proper, on certificates of responsible officers~~ Xxxxx & Co. Xxxxxx Xxxxxxx & Co. Incorporated of the Company ~~and its subsidiaries and public officials~~or any report filed since the date of such report with the SEC under Section 13 of the 1934 Act.

Appears in 1 contract

Samples: Distribution Agreement (Newell Rubbermaid Inc)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~Xxxxxxxx, ~~Senior Counsel of~~ Xxxxxxxxx, Xxxxxx & Xxxxxx, counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to the ~~Underwriters,~~ Agents a letter addressed to the Agents and dated the ~~Closing Date~~ date hereof stating their opinion to the effect that: (Ai) ~~The~~ the Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the~~ Wisconsin, with corporate ~~power and~~ authority to ~~own, lease~~ own and operate its ~~properties~~ properties, and to valid franchises, licenses and permits adequate for the conduct of its ~~business~~ business, as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.; (Cii) ~~Each of the Company~~ this Agreement and ~~the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each ~~jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business~~Terms Agreement, ~~except where the failure to so qualify would not have any material adverse effect upon the business~~if any, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the ~~Company~~ Company; (iii) the Indenture is in due and ~~(assuming such Indenture~~ proper form, has been duly ~~authorized~~and validly authorized by the necessary corporate action, has been duly and validly executed and delivered ~~by the Trustee) constitutes~~ and is a valid ~~and~~ instrument legally binding ~~agreement of~~ on the Company~~, enforceable against the Company in accordance with its terms~~, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to an Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform as to legal matters with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ the orders of the FERC and the PSCW referred to in Section 2(a)(x) hereof pertaining to the Notes have been duly entered and, to the best of the knowledge of such counsel, are still in force and effect; and no further approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each of those Acts.~~1933 Act Regulations (except that such counsel need express no opinion as to the financial statements, financial data, statistical data or supporting schedules contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or applicable Terms Agreement nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ therein contemplated, nor compliance with the terms and provisions thereof, will conflict ~~with~~ with, violate or ~~constitute~~ result in a breach ~~of, or default under~~of any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the ~~Company~~ Company, conflict with or ~~any Significant Subsidiary~~ result in a breach of any ~~court~~of the terms, ~~regulatory body~~conditions or provisions of the Articles of Incorporation or the By-laws, ~~administrative agency~~as restated or amended, ~~governmental body, or arbitrator having jurisdiction over~~ of the Company or of any ~~Significant Subsidiary; nor will~~ material agreement or instrument known to such ~~action~~ counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encumbrance of any nature whatsoever upon any of the ~~provisions of the Restated Certificate of Incorporation~~ properties or ~~Bylaws~~ assets of the Company.; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(iv) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (except that such counsel do not need to express any opinion as to the financial statements, financial data, statistical data or supporting schedules contained therein); (xiii) any statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by them and, as to matters of law and legal conclusion, are correct; and (xiv) except as set forth in the Prospectus, to the best knowledge of such counsel there are no pending or threatened legal or administrative proceedings to which the Company is a party or in which any of its property is the subject wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated by this Agreement or any Terms Agreement or the validity or enforceability against the Company of this Agreement or any Terms Agreement, the Indenture or the Notes; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead them to believe that the Registration Statement (other than the financial ~~statements~~ statements, financial data, statistical data and ~~other financial and statistical information~~ supporting schedules included ~~therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference~~ therein, as to which no they do not need to express any belief), at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and at the date hereof, or (if such opinion ~~need be rendered). In rendering such opinion, such counsel may rely (A~~is being delivered in connection with a Terms Agreement pursuant to Section 3(b) ~~as to matters involving~~ hereof) at the ~~application of laws~~ date of any ~~jurisdiction~~ Terms Agreement and at the Settlement Date with respect thereto as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (other than the ~~State~~ financial statements, financial data, statistical data and supporting schedules included therein, as to which they do not need to express any belief) as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of ~~Minnesota or~~ any Terms Agreement and at the ~~United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters~~ Settlement Date with respect thereto, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the ~~transactions contemplated hereby; and (B) as to matters of fact~~statements therein, to in the ~~extent deemed proper, on certificates of responsible officers~~ light of the ~~Company and its subsidiaries and public officials~~circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Distribution Agreement (Madison Gas & Electric Co)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series Y Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~[___________], ~~Senior Counsel of~~ Esq., counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to the ~~Underwriters,~~ Agents a letter addressed to the Agents and dated the ~~Closing Date~~ date hereof stating his opinion to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware. (B) The~~ Iowa; and the Company ~~has the corporate power and authority to own~~is a subsidiary of MidAmerican Energy Holdings Company, ~~lease and operate its properties and to conduct its business as described in the Final Prospectus~~an Iowa corporation, ~~and is duly registered as a financial holding company and a bank holding company~~ both of which are exempt from regulation under the ~~Bank~~ Public Utility Holding Company Act of ~~1956~~1935, as amended~~; Xxxxx Fargo Bank~~, ~~National Association~~ except under Section 9(a) (~~“Xxxxx Fargo Bank”~~2) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.thereof; (Cii) ~~Each of the Company~~ this Agreement and ~~the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each ~~jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business~~Terms Agreement, ~~except where the failure to so qualify would not have any material adverse effect upon the business~~if any, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes~~ is a valid and ~~legally~~ binding agreement of ~~the Company, enforceable against~~ the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by applicable law and except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors' rights generally and general principles of equity; (iii) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action, has been duly and validly executed and delivered and is a valid instrument legally binding on the Company, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to an Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform in all material respects with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ the orders of the FERC and the ICC referred to in Section 2(a)(xi) hereof pertaining to the Notes have been duly entered and, to the best of the knowledge of such counsel, are still in force and effect; and no further approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement and any applicable Terms Agreement; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1933 Act Regulations and Sections 305(a)(2) and 305(c) of the ~~regulations under each of those Acts.~~1939 Act (except that such counsel need express no opinion as to the financial statements and financial or statistical data contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or Terms Agreements nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ herein or therein contemplated, nor compliance with the terms and provisions hereof or thereof, will conflict ~~with~~ with, or ~~constitute~~ violate or result in a breach of, ~~or default under~~any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the Company, conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation or the bylaws of the Company or ~~any Significant Subsidiary~~ of any ~~court, regulatory body, administrative agency, governmental body,~~ material agreement or ~~arbitrator having jurisdiction over~~ instrument known to such counsel to which the Company or any ~~Significant Subsidiary; nor will such action~~ of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encumbrance of any nature whatsoever upon any of the ~~provisions~~ material properties or assets of the ~~Restated Certificate of Incorporation~~ Company or ~~Bylaws of the Company.~~any such subsidiary; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(v) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (~~other than~~ except that such counsel does not need to express any opinion as to the financial statements and financial or statistical data contained therein); (xiii) the statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by him and, as to matters of law and legal conclusion, are correct; (xiv) the Company is a public utility authorized by its Restated Articles of Incorporation to carry on the businesses in which it is engaged, as set forth in the Prospectus; the Company has the legal right to function and operate as an electric public utility company in the States of Iowa, Illinois and South Dakota, and as a gas public utility company in the States of Iowa, Illinois, South Dakota and Nebraska; and the franchises and permits of the Company are valid and subsisting and authorize the Company to carry on the utility businesses in which it is engaged in the communities and territory covered by such franchises and permits; (xv) the descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings and contracts and other ~~financial~~ documents are accurate and ~~statistical~~ fairly present the information ~~included therein~~required to be presented; and (xvi) except as set forth in the Prospectus, (A) there are no pending legal proceedings to which the Company is a party or in which any of its property is the subject which are material to the Company, other than ~~statements furnished in writing~~ ordinary routine legal proceedings incident to the business in which the Company ~~by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~is engaged, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as there are no material pending administrative or judicial proceedings to ~~matters~~ which the Company is a party or in which any of ~~fact~~its property is the subject arising under any federal, state or local provisions regulating the discharge of materials into the environment or otherwise relating to the protection of the environment, and, to the ~~extent deemed proper, on certificates of responsible officers~~ best of the knowledge of said counsel, no such proceedings are threatened by governmental authorities; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead him to believe that the Registration Statement, at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and ~~its subsidiaries~~ at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and ~~public officials~~at the Settlement Date with respect thereto, as the case may be, contains or contained an 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 not misleading or that the Prospectus as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Distribution Agreement (Midamerican Energy Co)

Opinion of Company Counsel. The Representative shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Xxxxxxx LLP, ~~Senior Counsel of~~ counsel for the Company~~, or another of the Company’s lawyers satisfactory to the Underwriters~~, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters to the effect that: (Ai) The Company ~~has~~ and each of its Subsidiaries (A) have been duly incorporated and ~~is a~~ are validly existing as a corporation in good standing under the laws of ~~the State~~ their respective jurisdictions of ~~Delaware. (B) The Company has the~~ incorporation, with full corporate power and corporate authority to ~~own,~~ own or lease ~~and operate its~~ their respective properties and to conduct ~~its business~~ their respective businesses as described in the ~~Final~~ Registration Statement and Prospectus, and is (B) to such counsel's knowledge are duly ~~registered~~ qualified as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized foreign corporation to transact business in all jurisdictions in which the ~~business~~ conduct of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which their respective businesses requires such ~~qualification wherein it owns or leases any material properties or conducts any material business~~qualification, except where the failure to so qualify would not have ~~any~~ a material adverse ~~effect~~ affect upon the ~~business,~~ business or financial condition ~~or properties~~ of the Company ~~and~~ or its ~~subsidiaries, taken as a whole~~Subsidiaries. (Dii) ~~All of the outstanding~~ The issued shares of capital stock of each ~~Significant~~ Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and, except as described in the Registration Statement and the Prospectus, are owned of record and beneficially by the Company. (iii) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; all of the outstanding shares of Common Stock of the Company issued subsequent to December 16, 1994 (A) have been duly authorized and validly issued and are fully paid and nonassessable, (~~except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank~~B) ~~non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and,~~ conform to the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as~~ description set forth in the ~~Final~~ Prospectus, (C) do not have any, and to such counsel's knowledge were not issued in violation of any, preemptive rights under the Company's Certificate of Incorporation or Bylaws or any other agreement known to such counsel, and (D) to such counsel's knowledge, have been issued in compliance with all federal and state securities laws. (~~E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F~~iv) The ~~Indenture~~ Company has ~~been duly authorized~~authorized and reserved for issuance the shares of Common Stock issuable (A) upon exercise of all outstanding options or warrants (other than the Warrants) in accordance with the terms of the applicable options or warrants, ~~executed~~ (B) upon exercise of the Warrants, pursuant to the terms of the Warrants and ~~delivered~~ the Warrant Agreement, and (C) upon exercise of the Representative's Purchase Option. All of the Securities to be issued and sold by the Company ~~and (assuming such Indenture has been duly authorized~~pursuant to this Agreement, ~~executed and delivered by~~ the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Warrant Agreement, and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States. (G) The Notes~~ Representative's Purchase Option have been duly authorized and, when issued and paid for as contemplated herein or upon exercise of the Warrants or the Representative's Purchase Option, will be validly issued, ~~authenticated~~ fully paid and ~~delivered~~ nonassessable. Further, (X) to such counsel's knowledge no preemptive rights of stockholders exist with respect to any of the Securities or the issue and sale or exercise thereof; (Y) to such counsel's knowledge no stockholder of the Company has any right pursuant to any agreement which has not been waived or honored to require the ~~provisions~~ Company to register the sale of ~~this Agreement~~ any shares owned by such stockholder under the Act in the public offering contemplated herein; and ~~the Indenture against payment~~ (Z) no further approval or authority of the ~~consideration therefor, will constitute valid and legally binding obligations~~ stockholders or the Board of Directors of the ~~Company, enforceable against~~ Company is required for the issuance and sale of the Securities to be sold by the Company ~~in accordance with their terms, except~~ as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenturecontemplated herein. (Hv) The ~~statements~~ certificates evidencing the Securities to be delivered hereunder are in due and proper form under New York law and the Securities conform in all material respects to the description thereof contained in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)Prospectus. (~~I) The Indenture is qualified under the Trust Indenture Act. (J~~vi) The Registration Statement is has become effective under the ~~Securities~~ Act ~~and, to the knowledge of such counsel,~~ and no stop order ~~suspending the effectiveness of the Registration Statement, as amended,~~ proceedings with respect thereto have been instituted or ~~any notice under Rule 401(g)(2) that would prevent its use, has been issued~~ are pending or threatened under the ~~Securities~~ Act and ~~no proceedings for that purpose have been initiated or,~~ nothing has come to ~~the knowledge of~~ such counsel~~, threatened by the SEC~~'s attention to lead them to believe that such proceedings are contemplated; ~~and~~ any required filing of the ~~Final~~ Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b~~) under the Securities Act~~). (Kvii) The Registration Statement, all Preliminary Prospectuses, the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ Act and the ~~regulations under each of those Acts~~Rules and Regulations (except that such counsel need express no opinion as to the financial statements, schedules, and other financial and statistical information included or incorporated by reference therein). (Lviii) Such counsel (i) requested that the Company provide it with copies of all Contracts; (ii) met with officers of the Company to discuss whether all Contracts were in fact delivered to such counsel; and (iii) reviewed all Contracts that were so delivered, and discussed the materiality of such Contracts to the Company and its business with officers of the Company, to determine whether such Contracts were required to be filed or incorporated by reference as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus as required under the Act and the Rules and Regulations. Based upon the foregoing procedures, such counsel does not know of any Contracts of a character required to be filed or incorporated by reference as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus that are not so filed or incorporated by reference or described as required, and each description of such Contracts that is included in the Registration Statement or the Prospectus fairly presents in all material respects the information required under the Act and the Rules and Regulations. (ix) To the best of such counsel’s 's knowledge, there ~~are~~ is no ~~legal~~ action or ~~governmental proceedings~~ suit pending before any court of the United States or ~~threatened which are~~ any foreign jurisdiction of a character required to be disclosed in the ~~Final Prospectus, other than those disclosed therein. (M) Neither~~ Prospectus pursuant to the ~~execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement~~ Act and the ~~Notes nor~~ Rules and Regulations; to the ~~incurrence~~ best of ~~the obligations therein contemplated~~such counsel's knowledge, ~~will conflict with~~ there is no action, suit or ~~constitute a breach of, or default under, any indenture or other agreement or instrument to which~~ proceeding threatened against the Company or any ~~Significant Subsidiary~~ of its Subsidiaries before any U.S. or foreign court or regulatory, governmental or administrative agency or body or arbitral forum of a character required to be disclosed in the Prospectus pursuant to the Act and the Rules and Regulations; to the best of such counsel's knowledge, neither the Company nor any of its Subsidiaries is a party or ~~bound and which constitutes a material contract and is set forth as an exhibit~~ subject to the ~~Company’s most recent Annual Report on Form 10-K~~ provisions of any injunction, judgment, decree or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order ~~or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary~~ of any court, regulatory body, administrative ~~agency~~agency or other governmental body or agency or arbitral forum of a character required to be disclosed in the Prospectus pursuant to the Act and the Rules and Regulations, ~~governmental body~~in each case which is not so disclosed in the Prospectus. (x) The execution and performance of this Agreement, the Warrant Agreement, and the Representative's Purchase Option and the consummation of the transactions herein and therein contemplated do not and will not conflict with or result in the breach of, or ~~arbitrator~~ violation of, any of the terms or provisions of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties may be bound or affected, except where such breach, violation or default would not have a material adverse effect on the business or financial condition of the Company and its Subsidiaries, considered as a whole, or violate any of the provisions of the Certificate of Incorporation or Bylaws of the Company or any of its Subsidiaries or, to the best of such counsel's knowledge, violate any statute, judgment, decree, order, rule or regulation known to such counsel or any court or of any governmental, regulatory or administrative body or agency or arbitral forum having jurisdiction over the Company or any ~~Significant Subsidiary;~~ of its Subsidiaries or any of their respective properties. (xi) Neither the Company nor ~~will such action result~~ any of its Subsidiaries is in violation or default under any ~~violation~~ provision of ~~the provisions~~ any of ~~the Restated~~ their respective Certificate of Incorporation or ~~Bylaws~~ Bylaws. (xii) The Company has the legal right, power, and authority to enter into this Agreement, the Warrant Agreement, and the Representative's Purchase Option on behalf of itself and to perform the transactions contemplated hereby and thereby. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option has been duly authorized, executed, and delivered by the Company. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option is the legal, valid, and binding obligation of the Company, enforceable in accordance with its terms, subject to customary exceptions for bankruptcy, insolvency, and equitable principles, except to the extent that the enforceability of the indemnification provisions of this Agreement and the Representative's Purchase Option may be limited by consideration of public policy under federal and state securities laws. (Nxiii) To the best of such counsel’s 's knowledge, ~~there are no contracts~~all approvals, ~~indentures~~consents, ~~mortgages~~orders, ~~loan agreements~~authorizations, ~~notes~~designations, ~~leases~~ registrations, permits, qualifications, licenses, declarations or ~~other instruments~~ filings by or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits theretowith any regulatory, ~~and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court~~ administrative or governmental ~~agency or~~ body ~~including~~ necessary in connection with the ~~SEC is required for the consummation~~ execution and delivery by the Company of ~~the transactions contemplated by~~ this Agreement, ~~except such~~ the Warrant Agreement, and the Representative's Purchase Option and the consummation of the transactions herein and therein contemplated (other than as may be required by the NASD or state securities or "Blue Sky" laws and regulations, as to which such counsel need express no opinion) have been obtained or made and are in full force and effect. (xiv) No transfer taxes are required to be paid under ~~the Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ New York state law in connection with the ~~purchase~~ sale and ~~distribution~~ delivery of the ~~Notes by~~ Securities to the ~~Underwriters~~Underwriters hereunder. (Pxv) ~~Each document filed pursuant to~~ Upon the ~~Exchange Act and incorporated by reference in~~ Closing, the ~~Final Prospectus complied when filed~~ Company will be classified as ~~to form in all material respects~~ a "C" corporation with the ~~Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing~~ Internal Revenue Service. As to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinionfactual matters, such counsel may rely ~~(A) as~~ on certificates obtained from directors and officers of the Company, its stockholders, and from public officials. Matters stated to counsel's knowledge shall be made after due and diligent inquiry of the attorneys in such firm who have given substantive attention to representation of the Company in connection with this public offering, and the opinion shall so note that requirement. In addition to the matters ~~involving~~ set forth above, the ~~application of laws of any jurisdiction other than~~ Representative shall have received on the ~~State of Minnesota~~ Closing Date or the ~~United States~~Option Closing Date, to as the ~~extent deemed proper and specified in such opinion~~case may be, ~~upon the opinion of counsel who are satisfactory to~~ a letter from Xxxxxx & Whitney LLP, counsel for the ~~Underwriters with respect to~~ Company, dated the ~~transactions contemplated hereby; and (B)~~ Closing Date or the Option Closing Date, as ~~to matters of fact~~the case may be, substantially in the form as set forth in Exhibit C attached hereto. Such counsel shall permit Xxxxxxxxx Xxxxxxx, LLP, to rely upon the ~~extent deemed proper, on certificates of responsible officers of the Company~~ opinions and letters required by this Section 6(f) in rendering its ~~subsidiaries and public officials~~opinion under Section 6(g).

Appears in 1 contract

Samples: Underwriting Agreement (Radyne Comstream Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~SAB&W, ~~Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and is ~~a validly existing corporation~~ in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors’ qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances.~~ . (iv) The ~~Company’s~~ Company has an authorized ~~equity~~ capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fvi) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law) including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus under the captions “Description of Debt Securities” and “Description of the Notes”. (vii) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or~~ moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting ~~enforcement of~~ creditors’ rights generally ~~or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) including concepts of commercial reasonableness, good faith and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay~~ fair dealing and the possible unavailability of specific performance or ~~prohibit~~ injunctive relief; and the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~1939 Act. (Gviii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the ~~Company. (N) To~~ Company or any Applicable Laws or any order known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including the SEC is required for the consummation by~~ having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. As used herein, the term “Applicable Laws” means those state laws of the State of New York and federal laws of the United States that, in such counsel’s experience and without independent investigation, are normally applicable to transactions of the type contemplated by this ~~Agreement, except such as may be required under~~ Agreement (provided that the ~~Blue Sky~~ term “Applicable Laws” shall not include federal or state securities or blue sky laws of or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA in connection with~~ thereunder (including, without limitation, the ~~purchase and distribution of~~ 1933 Act, the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange 1934 Act and the ~~Exchange~~ 1939 Act and the respective regulations ~~thereunder (other than financial statements and other financial and statistical information included therein~~thereunder), ~~other than statements furnished in writing to the Company by~~ any antifraud or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered~~similar laws). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Sidley Austin LLP, ~~Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and is ~~a validly existing corporation~~ in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors’ qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law) including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus under the captions “Description of Debt Securities” and “Description of the Notes”. (vi) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or~~ moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting ~~enforcement of~~ creditors’ rights generally ~~or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) including concepts of commercial reasonableness, good faith and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay~~ fair dealing and the possible unavailability of specific performance or ~~prohibit~~ injunctive relief; and the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~0000 Xxx. (Gvii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the ~~Company. (N) To~~ Company or any Applicable Laws or any order known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including the SEC is required for the consummation by~~ having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. As used herein, the term “Applicable Laws” means those state laws of the State of New York and federal laws of the United States that, in such counsel’s experience and without independent investigation, are normally applicable to transactions of the type contemplated by this ~~Agreement, except such as may be required under~~ Agreement (provided that the ~~Blue Sky~~ term “Applicable Laws” shall not include federal or state securities or blue sky laws of relating to disclosure or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA in connection with~~ thereunder (including, without limitation, the ~~purchase and distribution of~~ 1933 Act, the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange 1934 Act and the ~~Exchange~~ 1939 Act and the respective regulations ~~thereunder (other than financial statements and other financial and statistical information included therein~~thereunder), ~~other than statements furnished in writing to the Company by~~ any antifraud or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered~~similar laws). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxx & Xxxxxxx / Xxxxx & XxXxxxxx, ~~Senior Counsel of~~ counsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a private company with limited liability duly incorporated and ~~is a~~ validly existing ~~corporation in good standing~~ under the ~~laws~~ law of ~~the State of Delaware~~The Netherlands. (Bii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo BankAgreement, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not Indenture have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company in accordance with its resolutions and, when duly executed, sealed and ~~(assuming such Indenture has been duly authorized, executed~~ attested and delivered by the ~~Trustee) constitutes a~~ other parties thereto, will constitute valid and legally binding ~~agreement~~ instruments of the ~~Company,~~ Company enforceable against the Company in accordance with ~~its~~ their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (Giii) The ~~Notes~~ Guaranteed Securities have been duly authorized and, when the final terms thereof have been duly established and approved and when duly executed by the Company, in each case pursuant to the authority granted in the Resolution, and authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the purchasers thereof. (iv) The Company has the corporate power and corporate authority to execute and deliver and perform the obligations on its part to be performed under the Agreement, the Indenture and the Guaranteed Securities. (v) The execution and delivery of the Agreement, the Indenture and the Guaranteed Securities, the fulfillment of the terms herein and therein set forth and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of, or default under, the Deed of Incorporation or any law or administrative regulation of general application (as opposed to applicable to one or more specified natural or legal persons). (vi) The choice of New York law as the law governing the Agreement, the Indenture and the Guaranteed Securities is a valid choice of law and would be given effect by the courts of The Netherlands with respect to the obligations of the parties thereunder. (vii) In order to ensure the legality, validity, enforceability or admissibility in evidence of the Agreement, the Indenture or any of the Guaranteed Securities, it is not necessary that the Agreement or the Indenture or any of the Guaranteed Securities be filed, recorded or enrolled with any public authority, governmental agency or governmental department of The Netherlands. (viii) The submission to the jurisdiction of any United States Federal court or state court sitting in the Borough of Manhattan, the City of New York, State of New York, and the irrevocable waiver of any objection to the laying of venue of a proceeding in such court and of any immunity to jurisdiction of such court, to which it is or may become entitled, and the designation of CT Corporation as the agent of the Company to receive service of process with respect to any proceedings of or in the courts of the United States of America arising out of or relating to the Agreement and the Indenture are valid and binding on the Company. (ix) All authorizations, consents or approvals of, or registrations or filings with, any governmental department or regulatory authority of or within The Netherlands which are required for the execution and delivery of the Guaranteed Securities, the Indenture and the Agreement by the Company or the consummation by the Company of the transactions contemplated thereunder have been obtained or made and are in full force and effect. (x) There is no treaty regarding the recognition and enforcement of judicial decisions between the U.S. and The Netherlands. Therefore, a final judgment for a definite sum duly obtained against the Company from a court of the State of New York or any New York State or U.S. Federal Court sitting in New York City will not be recognized and enforced by a Dutch court and it will be necessary to bring the matter before the competent Dutch court. The claimant(s) may, in the course of these proceedings, submit the judgment rendered by the New York or U.S. Federal court sitting in New York City. Under current practice, a Dutch court normally will issue a judgment incorporating the judgment rendered by such court in a civil matter if it finds that (i) such court had jurisdiction over the original proceedings, (ii) the judgment was obtained in compliance with principles of due process; (iii) the judgment is final and conclusive such that all appeals have been exhausted and no other remedy could be obtained from a judicial body, and (iv) the judgment does not contravene the public policy or the public order of The Netherlands. Such counsel shall also state that it is not aware of any reason why in general the enforcement of the obligations of the Company under the Agreement, the Indenture and the Guaranteed Securities would be in conflict with current public policy in The Netherlands. (xi) The Agreement, the Indenture and the Guaranteed Securities, when issued, authenticated and delivered pursuant to the provisions of ~~this~~ the Agreement and the Indenture are in proper legal form under the laws of The Netherlands for the enforcement thereof against ~~payment of the consideration therefor, will constitute valid and legally binding obligations of~~ the Company, ~~enforceable against~~ in the ~~Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement~~ courts of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the IndentureThe Netherlands. (Hxii) No withholding, stamp duty, stamp duty reserve tax or issue, documentary, registration or other similar tax imposed by any government department or other taxing authority of or in The ~~statements in~~ Netherlands is payable by the ~~Final Prospectus (other than statements furnished in writing to~~ Underwriters or the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or holders of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Guaranteed Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the ~~purchase~~ issue and ~~distribution~~ delivery of the ~~Notes by~~ Guaranteed Securities pursuant to the ~~Underwriters~~Agreement or the execution, delivery and performance of the Agreement, the Indenture or the Guaranteed Securities. (Pxiii) ~~Each document filed pursuant~~ The Company is subject to civil and commercial law with respect to its obligations under the ~~Exchange Act~~ Agreement, the Indenture and ~~incorporated by reference~~ the Guaranteed Securities and neither the Company nor any of its properties or assets sited in The Netherlands enjoy any right of immunity, on the grounds of sovereignty or otherwise, with respect to its obligations under the Agreement, the Indenture and the Guaranteed Securities from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court in The Netherlands or any Federal court of the United States of America or any court of the State of New York, in each case located in the ~~Final Prospectus complied when filed as~~ Borough of Manhattan in the City of New York, from service of process, from attachment upon or prior to ~~form~~ judgment, from attachment in ~~all material respects with~~ aid of execution of judgment, from execution or enforcement of judgment, or other legal process. (xiv) None of the ~~Exchange Act and~~ holders of the ~~Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by~~ Guaranteed Securities outside The Netherlands or ~~on behalf~~ any of the Underwriters ~~and other than~~ will be deemed resident, domiciled or conducting business in The Netherlands solely by the ~~Statements~~ execution, delivery, performance, or enforcement of ~~Eligibility on Form T-1 included or incorporated by reference therein~~the Agreement, ~~as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving~~ the ~~application of laws of any jurisdiction other than the State of Minnesota~~ Indenture or the ~~United States~~Guaranteed Securities. (xv) None of the holders of the Guaranteed Securities outside The Netherlands or any of the Underwriters will be subject to taxation in The Netherlands solely by the execution, delivery, performance, or enforcement of the Agreement, the Indenture or the Guaranteed Securities, provided such holder is not a private individual and does not have a substantial interest in the Company as described in the Prospectus Supplement under "The Netherlands Taxation". (xvi) The information contained in the Prospectus Supplement under "The Netherlands Taxation", to the extent ~~deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to~~ it covers matters of ~~fact~~law or legal conclusions, ~~to the extent deemed proper, on certificates of responsible officers of the Company~~ has been reviewed by such counsel and ~~its subsidiaries and public officials~~is correct.

Appears in 1 contract

Samples: Terms Agreement (Deere & Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X.~~ Ms. Xxxxxx Sell Xxxx, Senior Vice President - Corporate Services and Corporate Secretary, or the General Counsel of the ~~Company~~Company (collectively, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ "Company Legal Officer") to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus,~~ Missouri and is duly ~~registered~~ qualified as a ~~financial holding company and~~ foreign corporation to do business in the State of Kansas; (ii) the Company is a ~~bank holding company under the Bank Holding Company Act~~ public utility duly authorized by its Restated Articles of ~~1956~~Consolidation, as amended~~; Xxxxx Fargo Bank~~, ~~National Association (“Xxxxx Fargo Bank”) is a national banking association authorized~~ under which it was organized to ~~transact~~ carry on the business ~~of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”)~~ in which it is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is engaged as set forth in the ~~Final~~ Prospectus.; and the Company has the legal right to function and operate as an electric utility in the States of Missouri and Kansas; (Eiii) ~~This Agreement has been duly~~ this Agreement, the Terms Agreements, if any, and ~~validly authorized, executed and delivered by~~ the ~~Company. (F) The~~ Indenture ~~has~~ have each been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ each constitutes a legal, valid and ~~legally~~ binding ~~agreement~~ obligation of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or other laws ~~relating to or~~ affecting the enforcement of creditors’ ' rights ~~generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)~~generally; and this Agreement, the Terms Agreements, if any, and ~~except further~~ the Indenture conform as ~~enforcement thereof may~~ to legal matters with the statements concerning them made in the Registration Statement and the Prospectus, and such statements accurately set forth the matters respecting this Agreement, the Terms Agreements, if any, and the Indenture required to be ~~limited by governmental authority to limit, delay or prohibit~~ set forth in the ~~making of payments outside~~ Registration Statement and the ~~United States.~~Prospectus; (Giv) ~~The Notes~~ the Underwritten Debt Securities are in due and proper form; the issue and sale of the Underwritten Debt Securities by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Underwritten Debt Securities, when ~~issued,~~ duly executed (which execution may include facsimile signatures of officers of the Company) authenticated and delivered ~~pursuant~~ to the ~~provisions of this Agreement and the Indenture~~ purchasers thereof against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of ~~the Company, enforceable against~~ the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or other laws ~~relating to or~~ affecting enforcement of creditors’ ' rights ~~generally or by general equity principles (regardless of whether enforceability is considered~~ generally; and the Underwritten Debt Securities conform as to legal matters with the statements concerning them made in ~~a proceeding in equity or at law)~~the Registration Statement and Prospectus, and ~~except further as enforcement thereof may~~ such statements accurately set forth the matters respecting the Underwritten Debt Securities required to be ~~limited by governmental authority to limit, delay or prohibit~~ set forth in the ~~making~~ Registration Statement and Prospectus; (v) the order of ~~payments outside~~ the ~~United States~~Missouri Public Service Commission authorizing the issuance and sale of the Underwritten Debt Securities has been duly entered and is still in force and effect, and ~~each holder~~ no further approval, authorization, consent, certificate or order of ~~Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by~~ any state or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents federal commission or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements regulatory authority is necessary with respect to the ~~Financial Industry Regulatory Authority~~issue and sale of the Underwritten Debt Securities as contemplated in this Agreement and applicable Terms Agreement; (vi) the Company holds valid and subsisting franchises, ~~Inc.~~ licenses and permits authorizing it to carry on the respective utility businesses in which it is engaged in the territory from which substantially all of its gross operating revenue is derived; (~~“FINRA”~~vii) the statements contained in the Registration Statement and Prospectus which are expressed therein to have been made on the authority of legal counsel to the Company have been reviewed by him and, as to ~~which no opinion need be rendered).~~matters of law and legal conclusions, are correct; (Iviii) ~~The Indenture is qualified under~~ the ~~Trust Indenture Act. (J) The~~ Registration Statement is effective under the ~~Securities Act and~~1933 Act, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for ~~that purpose have been initiated~~ a stop order are pending or, to the ~~knowledge~~ best of ~~such counsel~~Xx. Xxxx'x knowledge, threatened ~~by the SEC; and any required filing~~ under Section 8(d) of the ~~Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities~~ 1933 Act.; (Kix) ~~The~~ (A) the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus comply as to form in all material respects with the 1933 Act and ~~each amendment thereof or supplement thereto as of their respective effective or issue dates~~ the 0000 Xxx and with the 1933 Act Regulations and (~~other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to~~ B) the ~~Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or~~ documents incorporated by reference ~~therein~~in the Prospectus, as ~~to which no opinion need be rendered)~~ of the time they were filed with the SEC, complied as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1934 Act and the ~~regulations under each of those Acts.~~1934 Act Regulations, it being understood that Xx. Xxxx need express no opinion or belief as to the financial statements and other financial data included in the Registration Statement, Prospectus or such documents; (Lx) the Indenture has been qualified under the 1939 Act; (xi) To ~~such counsel’s~~ the best of the Company Legal Officer's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final~~ Prospectus, other than those disclosed therein., and all pending legal or governmental proceedings to which the Company is a party or of which any of its property is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the financial condition of the Company; (Mxii) ~~Neither~~ To the best of the Company Legal Officer's knowledge, the Company is not in violation of its Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note or lease to which it is a party or by which it or any of its properties may be bound. The execution and delivery of this ~~Agreement, nor~~ Agreement and applicable Terms Agreement or the consummation by the Company of the transactions contemplated by this Agreement and ~~the Notes nor~~ applicable Terms Agreement and the incurrence of the obligations therein contemplated, will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any ~~indenture~~ lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company ~~or any Significant Subsidiary~~ is a party or ~~bound,~~ by which it may be bound or to which any of the ~~breach of which would have a material adverse effect on the financial condition~~ property or assets of the Company ~~and its subsidiaries, taken as a whole~~is subject, or ~~violate~~ any ~~order~~ law, administrative regulation or ~~regulation~~ administrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, authority or body or any ~~Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or~~ arbitrator having jurisdiction over the ~~Company or any Significant Subsidiary~~Company; nor will such action result in any violation of the provisions of the Restated ~~Certificate~~ Articles of ~~Incorporation~~ Consolidation, as amended, or ~~Bylaws~~ by-laws of the Company.; (Nxiii) To ~~such counsel’s~~ the best of the Company Legal Officer's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement ~~and~~ or the ~~Final~~ Prospectus or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct~~. (O) No consent~~, ~~approval, authorization, order~~ and no default exists in the due performance or ~~decree~~ observance of any ~~court~~ material obligation, agreement, covenant or ~~governmental agency~~ condition contained in any contract, indenture, mortgage, loan agreement, note, lease or ~~body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement~~other instruments described, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document referred to, filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsreference.

Appears in 1 contract

Samples: Underwriting Agreement (Kansas City Power & Light Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Sidley Austin llp, ~~Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been~~ is a corporation duly incorporated and is ~~a validly existing corporation~~ in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors’ qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus~~. (Eiv) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law) including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus under the captions “Description of Debt Securities” and “Description of the Notes”. (vi) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or~~ moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting ~~enforcement of~~ creditors’ rights generally ~~or by~~ and to general equitable principles (regardless of whether ~~enforceability~~ enforcement is considered in a proceeding in equity or at law)) including concepts of commercial reasonableness, good faith and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay~~ fair dealing and the possible unavailability of specific performance or ~~prohibit~~ injunctive relief; and the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~0000 Xxx. (Gvii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the ~~Company. (N) To~~ Company or any Applicable Laws or any order known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including the SEC is required for the consummation by~~ having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. As used herein, the term “Applicable Laws” means those state laws of the State of New York and federal laws of the United States that, in such counsel’s experience and without independent investigation, are normally applicable to transactions of the type contemplated by this ~~Agreement, except such as may be required under~~ Agreement (provided that the ~~Blue Sky~~ term “Applicable Laws” shall not include federal or state securities or blue sky laws of relating to disclosure or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA in connection with~~ thereunder (including, without limitation, the ~~purchase and distribution of~~ 1933 Act, the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange 1934 Act and the ~~Exchange~~ 1939 Act and the respective regulations ~~thereunder (other than financial statements and other financial and statistical information included therein~~thereunder), ~~other than statements furnished in writing to the Company by~~ any antifraud or ~~on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered~~similar laws). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx~~ At the Closing Date, Xxxxxx X. ~~Xxxx~~Xxxxxxxx, ~~Senior~~ Vice President, General Counsel and Secretary of the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to ~~the Underwriters~~you an opinion, dated the Closing ~~Date~~ Date, in form and substance satisfactory to you, to the effect that: (Ai) ~~The~~ the Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the corporate~~ Missouri, with power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not reasonably be expected to have a Material Adverse Effect; (ii) each subsidiary of the Company has been duly incorporated and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware.~~ its incorporation, with all power and authority (Ccorporate and other) ~~Each of~~ to own its properties and conduct its business as described in the ~~Company and the Significant Subsidiaries~~ Prospectus; each such subsidiary is duly qualified to do business ~~and is~~ as a foreign corporation in good standing in ~~each jurisdiction~~ all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such ~~qualification wherein it owns or leases any material properties or conducts any material business~~qualification, except ~~where~~ to the extent that the failure to be so ~~qualify~~ qualified or to be in good standing would not reasonably be expected to have ~~any material adverse effect upon~~ a Material Adverse Effect; and all of the ~~business, condition or properties~~ issued and outstanding common stock of each subsidiary of the Company ~~and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have~~ has been duly authorized and validly ~~authorized and~~ issued and ~~are~~ is fully paid and nonassessable, and all of such common stock (except ~~as provided in 12 X.X.X. §00 in~~ with regard to 40% of the ~~case~~ common stock of ~~Xxxxx Fargo Bank~~Electric Energy, Inc.) ~~non-assessable, and are directly or indirectly~~ is owned by the Company, directly or indirectly, free from liens, encumbrances and defects of title; (iii) other than as described in the Prospectus, there are no legal or governmental proceedings pending to which the Company ~~free and clear~~ or any of its subsidiaries is a party or of which any ~~perfected security interest and~~property of the Company or such subsidiaries is the subject which, if determined adversely to the ~~knowledge~~ Company or such subsidiaries, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; to the best of such counsel's knowledge, ~~any other security interests, claims, liens~~ no such proceedings are threatened or ~~encumbrances. The Company’s authorized equity capitalization is as set forth~~ contemplated by governmental authorities or threatened by others; and the statements included or incorporated by reference in the ~~Final Prospectus.~~Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters; (Eiv) ~~This~~ this Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company.; (Fv) ~~The~~ the Securities have been duly authorized and executed by the Company and, when authenticated in the manner provided for in the Indenture, and issued and delivered against payment therefor pursuant to this Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, except as may be limited by the Exceptions, and will be entitled to the benefits of the Indenture; and the Securities conform in all material respects to the description thereof in the Prospectus; (vi) the Indenture has been duly authorized, executed and delivered by the Company ~~and (~~and, assuming ~~such~~ that the Indenture has been duly authorized, executed and delivered by the Trustee~~) constitutes~~ , the Indenture will constitute a valid and legally binding ~~agreement~~ instrument of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, except as ~~enforcement thereof~~ may be limited by ~~bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ the Exceptions; the Indenture conforms in all material respects to ~~or affecting enforcement~~ the description thereof in the Prospectus; and the Indenture has been duly qualified under the 1939 Act; (vii) the issue and sale of ~~creditors’ rights generally or~~ the Securities by ~~general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)~~the Company, and ~~except further as enforcement thereof may be limited~~ the compliance by ~~governmental authority to limit, delay or prohibit~~ the ~~making~~ Company with all of ~~payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to~~ the provisions of the Indenture, the Securities and this ~~Agreement~~ Agreement, and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and the execution, delivery and performance of this Agreement, the Securities and the Indenture ~~against payment~~ will not require the approval or consent of any holder or trustee of any debt or other obligations or securities of the ~~consideration therefor~~Company which will not have been obtained; (viii) the Company is not, and, after giving effect to the offering and sale of the Securities, the Company will ~~constitute valid~~ not be, an "investment company," or an entity "controlled" by an investment company, as such terms are defined in the Investment Company Act of 1940, as amended; (ix) the SEC has issued the 1935 Act Order authorizing the issuance and ~~legally binding obligations~~ sale of the Securities by the Company; the 1935 Act Order is in full force and effect and is sufficient to authorize the transactions contemplated by this Agreement; and no other consent, approval, authorization, order, registration, filing or qualification of or with any court or governmental agency or body is required for the issue and sale of the Securities by the Company, ~~enforceable against~~ or the consummation by the Company ~~in accordance with their terms~~of the transactions contemplated by this Agreement or the Indenture, except such as ~~enforcement thereof~~ have been obtained under the 1933 Act and the 1939 Act and such consents, approvals, authorizations, orders, registrations, filings or qualifications as may be ~~limited by bankruptcy, insolvency, reorganization, moratorium~~ required under state securities or ~~other~~ blue sky laws ~~relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered~~ in ~~a proceeding in equity or at law),~~ connection with the purchase and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits distribution of the ~~Indenture.~~Securities by the Underwriters; and (Hx) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, ~~as amended~~at the Effective Date, ~~or any notice under Rule 401(g)(2) that would prevent its use~~and the Prospectus, ~~has been issued under~~ at the ~~Securities Act and no proceedings for that purpose have been initiated or, to~~ time it was filed with the ~~knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus~~ SEC pursuant to Rule 424(b) ~~has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities Act.~~ 1933 Act (~~K) The Registration Statement, the Final Prospectus and~~ except in each ~~amendment thereof or supplement thereto~~ case as ~~of their respective effective or issue dates (other than~~ to financial statements and other financial ~~and statistical information~~ data contained ~~therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included~~ or incorporated by reference therein, ~~as to~~ upon which ~~no opinion~~ such counsel need ~~be rendered)~~ not pass), complied as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1933 Act and the 1939 Act and the respective rules and regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth SEC thereunder; each Incorporated Document as ~~an exhibit~~ originally filed pursuant to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any~~ 1934 Act (except as to financial statements and other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed data contained or incorporated by reference ~~as exhibits thereto~~therein, ~~and the descriptions thereof or references thereto are correct. (O~~upon which such counsel need not pass) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form when so filed in all material respects with the ~~Exchange~~ requirements of the 1934 Act and the ~~Exchange~~ rules and regulations of the SEC thereunder; the Registration Statement has become, and on the Closing Date is, effective under the 1933 Act ~~regulations thereunder~~ and, to the best of such counsel's knowledge, no proceedings for a stop order with respect thereto are threatened or pending under Section 8 of the 1933 Act; and nothing has come to the attention of such counsel that has caused it to believe that the Registration Statement (~~other than~~ except as to financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included data contained or incorporated by reference therein, upon which such counsel need not pass), at the Effective Date, contained an 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 not misleading or that the Prospectus (except as to financial statements and other financial data contained or incorporated by reference therein, upon which such counsel need not pass), at the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion shall also state that such counsel has no ~~opinion need~~ knowledge of any litigation, pending or threatened, that challenges the validity of the Securities, the Indenture or this Agreement, or that seeks to enjoin the performance of the Company's obligations hereunder or thereunder or that might reasonably be ~~rendered)~~expected to have a Material Adverse Effect except as described in the Prospectus. In rendering such opinion, such counsel ~~may rely~~ (A) may rely as to matters involving the application of the laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States, to the extent deemed proper and specified in such opinion~~New York, upon the opinion of ~~counsel who are satisfactory~~ Underwriters' Counsel rendered pursuant to ~~counsel for the Underwriters with respect to the transactions contemplated hereby;~~ Section 5(b) hereof, and (B) may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials. Such counsel's opinion may further state that it is addressed to the Underwriters and is rendered solely for their benefit and may not be relied upon in any manner by any other person (other than Underwriters' Counsel as to certain matters involving the application of the laws of the State of Missouri in its opinion to the Underwriters on the date of such opinion) without such counsel's prior written consent.

Appears in 1 contract

Samples: Underwriting Agreement (Ameren Corp)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (Bii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Div) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Ev) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fvi) ~~The Indenture~~ Each of the Indentures has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Senior Trustee or the Subordinated Trustee, as applicable) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States. (Gvii) The Notes are in due and proper form and have been duly established in conformity with Section 301 of the applicable Indenture. When the specific terms of a tranche of Notes have been fixed by an authorized officer of the Company by executing and delivering to the Senior Trustee or the Subordinated Trustee, as applicable, an authentication certificate supplemental to an officers’ certificate, such Notes will be duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the applicable Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, and each holder of Notes will be entitled to the benefits of the applicable Indenture. (Hviii) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “~~Underwriting~~ Supplemental Plan of Distribution (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the ~~captions~~ caption “Plan of Distribution ~~(Conflicts of Interest)” and “Underwriting~~ (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (Iix) ~~The Indenture~~ Each of the Indentures is qualified under the Trust Indenture Act. (Jx) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) ~~has been~~ will be made in the manner and within the time period required by Rule 424(b) under the Securities Act. (Kxi) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (Lxii) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (Mxiii) Neither the execution and delivery of this ~~Agreement~~Agreement or of the Indentures, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (Nxiv) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxv) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the ~~Underwriters~~Agents. (Pxvi) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act ~~regulations~~ Regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the ~~Underwriters~~ Agents and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Chapxxx xxx Cutlxx, ~~Senior Counsel of~~ xxunsel to the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company ~~has been duly incorporated and~~ (A) is a corporation duly incorporated, validly existing ~~corporation~~ and in good standing under the laws of the State of ~~Delaware.~~ Illinois and the Commonwealth of Virginia, (B) ~~The~~ is duly qualified and in good standing as a foreign corporation in the States of Georgia, Iowa, Kansas, Kentucky, Missouri, South Carolina and Tennessee, and to the best of the knowledge, information and belief of such counsel, the Company is duly qualified and in good standing as a foreign corporation in each other state or jurisdiction in which the location of its properties or the conduct of its business makes such qualification necessary and where the failure to so qualify would have a material adverse effect upon the business or financial condition of the Company and the Subsidiaries, taken as a whole, and (C) has ~~the~~ due corporate ~~power and~~ authority to ~~own, lease and operate its properties and to conduct~~ carry on its business as described in the ~~Final Prospectus~~Prospectus and to own, lease, license and ~~is duly registered as a financial holding company and a bank holding company under~~ operate the ~~Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association~~ properties used in said business; (~~“Xxxxx Fargo Bank”~~ii) Each Subsidiary (A) is a ~~national banking association authorized to transact the business of banking under the National Bank Act of 1864~~corporation duly incorporated, ~~as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and~~ validly existing ~~corporation~~ and in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware.~~ its incorporation, (CB) ~~Each~~ to the best of the ~~Company~~ knowledge, information and ~~the Significant Subsidiaries~~ belief of such counsel, is duly qualified ~~to do business~~ and is in good standing as a foreign corporation in each jurisdiction in which ~~requires~~ the location of its properties or the conduct of its business makes such qualification ~~wherein it owns or leases any material properties or conducts any material business, except~~ necessary and where the failure to so qualify would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business,~~ business or financial condition ~~or properties~~ of the Company and ~~its subsidiaries~~the Subsidiaries, taken as a whole., and (C) has due corporate authority to carry on its business as described in the Prospectus and to own, lease, license and operate the properties used in said business; (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Eiii) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company., enforceable in accordance with its terms, subject, however, to bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and by the exercise of judicial discretion in accordance with general principles applicable to equitable and similar remedies and to possible limitations on the validity or enforceability of the indemnification and contribution provisions contained in this Agreement as a result of securities laws or public policy; (Fiv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a legal, valid and ~~legally~~ binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject, however, to bankruptcy, insolvency, reorganization, moratorium or and other laws ~~relating to or~~ affecting ~~enforcement of~~ creditors’ ' rights generally or and by the exercise of judicial discretion in accordance with general principles applicable to equitable ~~principles (regardless of whether enforceability is considered in a proceeding in equity or at law),~~ and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.~~similar remedies; (Gv) The creation, issuance and sale of the Notes by the Company pursuant to this Agreement and the Indenture have been duly authorized by all necessary corporate action and, when ~~issued~~issued within the limitations set forth in the orders referred to in (xi) below and executed, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, ~~except as enforcement thereof may be limited by~~ subject, however, to bankruptcy, insolvency, reorganization, moratorium or and other laws ~~relating to or~~ affecting ~~enforcement of~~ creditors’ ' rights generally or and by the exercise of judicial discretion in accordance with general ~~equity~~ principles ~~(regardless of whether enforceability is considered in a proceeding in equity or at law)~~applicable to equitable and similar remedies, and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes~~ will be entitled to the benefits of the Indenture; (vi) The Indenture has been qualified under the 1939 Act and the Notes and the Indenture conform as to legal matters with the statements concerning them made in the Prospectus. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (Jvii) The Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel, threatened~~ instituted or are pending before or are contemplated by the SEC~~; and any~~ . Any required filing of the ~~Final~~ Basic Prospectus ~~pursuant to Rule 424(b)~~ and the Prospectus Supplement has been made in ~~the manner and within the time period required by~~ accordance with Rule 424(b) ~~under~~ of the ~~Securities Act.~~1933 Act Regulations; (Kviii) The Registration Statement, at the ~~Final~~ Effective Date, and the Basic Prospectus and ~~each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements~~ the Prospectus Supplement, when it was filed with the SEC pursuant to Rule 424 and ~~other financial and statistical information contained therein~~on the date hereof, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the 1933 Act Regulations and the 1939 Act and the applicable rules and regulations of the SEC thereunder, and the documents or portions thereof filed with the SEC pursuant to the 1934 Act and deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were filed with the SEC, complied as to form in all material respects with the applicable requirements of the ~~Securities Act, the Trust Indenture~~ 1934 Act and the ~~regulations under~~ 1934 Regulations (except in each ~~of those Acts.~~case, for the financial statements, schedules and financial and statistical data, as to which no opinion need be expressed); (Lix) ~~To such counsel’s knowledge, there are no~~ Such counsel does not know of any legal or governmental ~~proceedings~~ proceeding pending or threatened to which ~~are~~ the Company or any Subsidiary is a party or to which any of the properties of the Company or any Subsidiary is subject which is required to be ~~disclosed~~ described in the ~~Final~~ Registration Statement or the Prospectus and is not so described, or of any contract or other document which is required to be described in the Registration Statement or the Prospectus or is required to be filed as an exhibit to the Registration Statement which is not described or has not been filed as required. The statements in the Prospectus, ~~other than those disclosed therein.~~insofar as such statements constitute a summary of documents referred to therein or of statutes, laws or legal or governmental proceedings, are accurate summaries in all material respects and fairly and correctly present the information called for with respect to such documents and matters; (Mx) ~~Neither~~ The issue and sale of the ~~execution~~ Notes by the Company and the execution, delivery and performance of this Agreement, ~~nor~~ and any Terms Agreement and of the Indenture and the consummation ~~by the Company~~ of the transactions contemplated herein and by ~~this Agreement and~~ the Notes ~~nor~~ and the incurrence of the obligations therein ~~contemplated~~contemplated will not result in a material breach or violation of any of the terms or provisions of, ~~will conflict with~~ or constitute a ~~breach of, or~~ material default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement, partnership agreement, joint venture, stock purchase agreement, or other material agreement or instrument ~~to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth~~ filed as an exhibit to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~Registration Statement, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated Certificate~~ Amended Articles of ~~Incorporation~~ Incorporation, as amended, or ~~Bylaws~~ By-laws, as amended, of the Company~~. (N) To~~ , or any statute or, to the best of such counsel’s 's knowledge, ~~there are no contracts~~any order, ~~indentures, mortgages, loan agreements, notes, leases~~ rule or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree regulation of any court or governmental agency or body ~~including~~ having jurisdiction over the ~~SEC is~~ Company or any of its properties; (xi) All authorizations, approvals, consents or other orders of any governmental authority or agency required ~~for~~ in connection with the authorization, issuance and sale of the Notes by the Company, pursuant to this Agreement or any Terms Agreement and the consummation by the Company of the transactions contemplated by this ~~Agreement~~Agreement or any Terms Agreement (other than qualification under state securities laws, ~~except such as may be required under the~~ Blue Sky laws or the by-laws and rules of ~~any jurisdiction~~ the NASD) have been obtained and continue in full force and effect; (xii) The Company is not a "holding company" or ~~regulations adopted by FINRA~~ a "subsidiary company" of a "public utility company" or of a "holding company" or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company," as such terms are defined in the Holding Company Act. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Agents, representatives of the independent public accountants for the Company and the Agents at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although, except for the matters referred to under the heading "Legal Opinions" in the Prospectus, such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus on the basis of the foregoing, no facts have come to the attention of such counsel that lead them to believe that the Registration Statement, at the Effective Date, and at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the ~~purchase~~ date of any Terms Agreement and ~~distribution~~ at the Settlement Date with respect thereto, as the case may be, contains or contained an untrue statement of a material fact or omits or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus, as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the ~~Notes by~~ circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to (i) the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial ~~statements~~ statements, schedules and other financial and statistical ~~information~~ data included ~~therein, other than statements furnished~~ in ~~writing to~~ the ~~Company by~~ Registration Statement or ~~on behalf of~~ the ~~Underwriters and other than~~ Prospectus or (ii) the Statements of Eligibility on ~~Form~~ Forms T-1 ~~included or incorporated by reference therein,~~ and T-2 filed as exhibits to ~~which no opinion need be rendered~~the Registration Statement). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with With respect to the ~~transactions contemplated hereby;~~ matters covered by foregoing clauses (i) and (~~B) as to matters of fact~~ii), ~~to the extent deemed proper, on~~ Chapxxx xxx Cutlxx xxx rely upon certificates of responsible officers of the Company as to the nature and ~~its subsidiaries~~ extent of business being conducted by the Company and ~~public officials~~the Subsidiaries in states or jurisdictions wherein they are not licensed or qualified as foreign corporations. With respect to the matters covered by foregoing clause (xi) above, such counsel may rely upon the opinion of Mark X. Xxxxxxx, Xxq., Vice President, Regulatory Affairs for the Company. Such opinion of counsel for the Company shall state that the opinion of such other counsel is in form and substance satisfactory to counsel for the Company and, in their opinion, they and the Agents are justified in relying on such other opinion. In addition, such counsel need not express any opinion with respect to the Federal Energy Regulatory Commission's jurisdiction with respect to the Barnsley, Kentucky storage field and UCG Storage.

Appears in 1 contract

Samples: Distribution Agreement (United Cities Gas Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxx, Esq., Senior ~~Counsel~~ Vice President/Legal of the Company, or ~~another~~ Xxxxxxxx X. Xxxxxxxxxx, Esq., Vice President and General Counsel of the ~~Company’s lawyers~~ Company dated as of such Closing Date or Settlement Date, in form and substance satisfactory to the ~~Underwriters~~Agents and the Agents' counsel, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) ~~Each~~ To the best of such counsel's knowledge, the Company ~~and the Significant Subsidiaries~~ is duly qualified as a foreign corporation to do transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification ~~wherein it owns or leases any material properties or conducts any material business, except where~~ and in which failure of the ~~failure~~ Company to be so ~~qualify~~ qualified and in good standing would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business~~Company and its subsidiaries considered as a single enterprise. (iv) This Agreement (and, ~~condition or properties~~ if the opinion is being given pursuant to Section 6(c) hereof as a result of the Company ~~and its subsidiaries~~having entered into a Terms Agreement requiring such opinion, ~~taken as a whole. (D~~the applicable Terms Agreement) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~principles. (Gvi) The Notes are in the form contemplated by the Indenture, have been duly authorized by all necessary corporate action and, when ~~issued,~~ executed and authenticated as specified in the Indenture and delivered ~~pursuant to the provisions of this Agreement and the Indenture~~ against payment of the consideration ~~therefor~~therefor in accordance with this Agreement, as supplemented by the applicable Terms Agreement, if any, will ~~constitute~~ be valid and ~~legally~~ binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statesprinciples, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the ~~captions “~~caption "Description of Debt Securities~~,” “Plan of Distribution (Conflicts of Interest),” “~~" and in the Prospectus Supplement under the caption "Description of the Notes~~” and “Underwriting (Conflicts of Interest),”~~ ", insofar as they purport to summarize certain provisions of documents ~~or laws~~ specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)provisions. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration ~~Statement is~~ Statements are effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statements has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) ~~The~~ At the time each of the Registration ~~Statement~~Statements became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and other financial ~~and~~ or statistical ~~information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ data included or incorporated by reference therein, as to which no opinion need be rendered) ~~complied~~ appeared on its face to comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final Prospectus~~Registration Statements, other than those disclosed therein~~. (M) Neither the execution~~ , and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with all pending legal or ~~constitute a breach of, or default under, any indenture or other agreement or instrument~~ governmental proceedings to which the Company or any ~~Significant Subsidiary~~ subsidiary is a party or ~~bound and~~ of which ~~constitutes a material contract and~~ any of their property is ~~set forth as an exhibit~~ the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~business, ~~or any other indenture or material agreement or instrument known to such counsel and to which~~ are, considered in the ~~Company or any Significant Subsidiary is a party or bound~~aggregate, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Companynot material. (Nxii) To the best of such counsel~~’s knowledge~~'s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments ~~or documents~~ required to be described or referred to in the Registration ~~Statement and the Final Prospectus~~ Statements or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct, and, except for certain minor matters which, either individually or in the aggregate, will not or do not have a material adverse effect on the Company or its business, no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference. (Oxiii) No consent, approval, authorization, or order ~~or decree~~ of any court or governmental authority or agency ~~or body including the SEC~~ is required ~~for~~ in connection with the ~~consummation by the Company~~ sale of the ~~transactions contemplated by this Agreement~~Notes, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, or state securities laws; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and the Indenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, or any law, administrative regulation or administrative or court decree, known to such counsel to be applicable to the Company, of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company, except that such counsel need express no opinion as to any state securities or Blue Sky ~~laws of~~ laws, or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA~~ thereunder; nor will such action result in ~~connection with the purchase and distribution~~ any violation of the ~~Notes by~~ provisions of the ~~Underwriters~~charter or bylaws of the Company. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied~~ (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which counsel need not comment), appeared on its face to comply when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange Act~~ rules and regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)promulgated thereunder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States~~New York, to the extent deemed proper and specified in such opinion, upon the opinion of ~~counsel who are satisfactory to~~ Xxxxx & Wood LLP, counsel for the ~~Underwriters with respect~~ Agents, delivered pursuant to ~~the transactions contemplated hereby;~~ subsection (a)(2) hereof and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials.

Appears in 1 contract

Samples: Distribution Agreement (Comdisco Inc)

Opinion of Company Counsel. The ~~opinion~~ opinion, dated as of ~~Xxxxxxxx X. Xxxx~~such date, ~~Senior Counsel~~ of Jxxx Xxxxxxx, Esq., Executive Vice President and Deputy Chief Executive Officer of the Company, ~~or another of the Company’s lawyers~~ in form and substance satisfactory to the ~~Underwriters~~Agents and their counsel, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly ~~incorporated~~ organized and is a validly existing ~~corporation in good standing~~ under the laws of ~~the State of Delaware. (B) The Company has the corporate~~ Norway, with power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus; and to issue and sell the Notes as provided in this Agreement and any applicable Terms Agreement, and to perform and comply with the terms and provisions of the Indenture and this Agreement; (ii) This Agreement (and, if the opinion is ~~duly registered~~ being given pursuant to Section 6(c) hereof as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each result of the Company ~~and~~ having entered into a Terms Agreement requiring such opinion, the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Dapplicable Terms Agreement) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company.; (Fiii) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding ~~agreement~~ instrument of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium ~~or other~~ and similar laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ rights ~~generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law),~~ and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ has been duly qualified under the ~~making of payments outside the United States.~~Trust Indenture Act; (Giv) The Notes have been duly and validly authorized and, when ~~issued,~~ duly executed and authenticated as specified in the Indenture and delivered ~~pursuant to the provisions of this Agreement and the Indenture~~ against payment of the consideration ~~therefor~~therefor in accordance with this Agreement, and any applicable Terms Agreement, will ~~constitute~~ be valid and legally binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, ~~except~~ subject as ~~enforcement thereof may be limited by~~ to enforcement, to bankruptcy, insolvency, ~~reorganization, moratorium or~~ reorganization and other laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ rights ~~generally or by~~ and to general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statesprinciples, and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) The Company is not in default under the provisions of any agreement or of any instruments evidencing or relating to any outstanding indebtedness and neither the solicitation of offers to purchase the Notes nor issuance or sale of the Notes as provided in this Agreement nor the execution, performance and compliance by the Company with all of the provisions of the Notes, the Indenture, this Agreement and any applicable Terms Agreement, will conflict with or result in any breach of any of the terms, conditions or provisions of any agreement or instrument to which the Company is a party or by which it is bound, nor will any such action result in any violation of the provisions of the Articles of Association of the Company or of any statute of Norway or any order, rule or regulation of any court or governmental instrumentality or authority in Norway having jurisdiction over the Company; (vi) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or to which any property of the Company is subject, which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the financial position, shareholders’ equity or results of operations of the Company, and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vii) All authorizations, approvals, licenses and consents from all governmental authorities in Norway which are necessary under the laws and regulations of Norway for the execution and delivery by the Company of this Agreement, the Indenture, any applicable Terms Agreement and the Notes, and for the issuance and sale of the Notes pursuant to this Agreement and any applicable Terms Agreement, and the performance of the covenants and agreements contained in this Agreement, any applicable Terms Agreement, the Notes and Indenture have been obtained and are in full force and effect; (viii) All matters of Norwegian law set forth in the Registration Statement and Prospectus are correctly set forth therein; (ix) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “Description of Debt Securities,” and “Plan of ~~Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest)~~Distribution,” insofar as ~~they purport to summarize certain provisions~~ such statements constitute a summary of the documents ~~or laws specifically~~ referred to therein, are ~~accurate summaries~~ correct in all material respects; (x) Under the laws of ~~such provisions~~ Norway, the Company would not be entitled to plead, or ~~laws or~~ cause to be pleaded on its behalf, sovereign immunity from the jurisdiction of the ~~sources from~~ courts of Norway in respect of any action arising out of or relating to the Company’s obligations under this Agreement, any applicable Terms Agreement, the Indenture or the Notes and the agreement to the choice of law provisions in this Agreement, any applicable Terms Agreement, the Indenture and the Notes will be recognized by the courts of Norway; (xi) The Notes will rank pari passu, without preference one above the other by reason of priority of date of issue, currency of payment or otherwise, with all other unsecured indebtedness of the Company for borrowed money (including guarantees by the Company of loan indebtedness of others); (xii) The Registration Statement (except as to financial statements included therein as to which such ~~summaries~~ counsel need not express an opinion) complies as to form in all material respects with the requirements of the 1933 Act, and the 1939 Act and the rules and regulations of the Commission thereunder, and such counsel has no reason to believe that the Registration Statement (except as aforesaid) at the time it became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, as amended or supplemented (except as aforesaid) as of its date and at the date hereof contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were ~~derived~~ made, not misleading; (xiii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference related schedules therein, as to which such counsel need express no ~~opinion need be rendered)~~ opinion), when they became effective or were filed with or furnished to the Commission, as the case may be, complied as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act or the 1934 Act, ~~the Trust Indenture Act~~ as applicable, and the ~~regulations~~ 1933 Act Regulations and 1934 Act Regulations; and such counsel has no reason to believe that any of such documents, when they became effective or were so filed or furnished, as the case may be, contained, in the case of a registration statement which became effective under ~~each~~ the 1933 Act, an untrue statement of ~~those Acts. (L) To such counsel’s knowledge, there are no legal~~ a material fact or ~~governmental proceedings pending or threatened which are~~ omitted to state a material fact required to be ~~disclosed~~ stated therein or necessary to make the statements therein not misleading, and, in the ~~Final~~ case of other documents which were filed or furnished under the 1933 Act or the 1934 Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed or furnished, not misleading; (xiv) The Company has authorized, issued and outstanding share capital as set forth in the Prospectus under the heading “Capitalization” and all the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; (xv) Except as described in the Prospectus, ~~other than those disclosed therein.~~payments made by the Company to holders under the Notes and the Indenture and by the Company to the Agents under the Agreement will not be subject under the current laws of Norway or any political subdivision of any such jurisdiction to any withholdings or similar charges for or on account of taxation; (Mxvi) ~~Neither~~ The choice of the ~~execution and delivery~~ laws of the State of New York as the governing law of this Agreement, ~~nor~~ any applicable Terms Agreement, the ~~consummation by~~ Indenture and the Notes is a valid choice of law under the laws of Norway and any political subdivision thereof and courts of Norway should honor this choice of law. The Company has the power to submit and pursuant to Section 13 of ~~the transactions contemplated by~~ this Agreement and ~~the Notes nor the incurrence~~ Section 114 of the ~~obligations therein contemplated~~Indenture has legally, ~~will conflict with or constitute a breach of~~validly, ~~or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound~~ effectively and ~~which constitutes a material contract and is set forth as an exhibit~~ irrevocably submitted to the ~~Company’s most recent Annual Report on Form 10-K~~ nonexclusive personal jurisdiction of any Federal or State Court in the Borough of Manhattan, The City of New York in any ~~subsequent Quarterly Reports on Form 10-Q~~ suit, action or ~~Current Reports on Form 8-K~~proceeding against it arising out of or related to any of the transaction documents or with respect to its obligations, liabilities or any other ~~indenture~~ matter arising out of or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the ~~purchase and distribution~~ sale of ~~the~~ Notes by the ~~Underwriters.~~Company to the Agents under this Agreement and has validly and irrevocably waived any objection to the venue of a proceeding in any such court; and has the power to designate, appoint and empower and pursuant to Section 13 of this Agreement and Section 114 of the Indenture has legally, validly, effectively and irrevocably designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any Federal or State Court in the Borough of Manhattan, The City of New York; and (Pxvii) ~~Each document filed pursuant to~~ Any judgment against the ~~Exchange Act and incorporated by reference~~ Company for the payment of money obtained in any court of the State of New York or of the United States located in the ~~Final Prospectus complied when filed~~ State of New York having jurisdiction under its own domestic laws in respect of any suit, action or proceeding against the Company based upon this Agreement, the Indenture or the Notes issued thereunder respectively, which is final, conclusive and enforceable in the State of New York will, subject to Norwegian public policy considerations not being violated or frustrated as ~~to form in all material respects with the Exchange Act~~ a consequence thereof, be recognised as conclusive and ~~the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to~~ enforceable against the Company by ~~or on behalf~~ any Norwegian court without reconsidering the merits of the ~~Underwriters~~ action subject to and ~~other than~~ in accordance with the ~~Statements~~ Norwegian Civil Procedure Act of ~~Eligibility on Form T-1 included or incorporated by reference therein~~1915, ~~as to which no opinion need be rendered)~~Section 68a. In rendering such opinion, such counsel may rely ~~(A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion,~~ upon the opinion or opinions of ~~counsel who are satisfactory~~ Axxxx & Oxxxx, delivered pursuant to ~~counsel for the Underwriters with respect to the transactions contemplated hereby; and (B~~Section 5(a)(2) hereof, as to matters of ~~fact, to the extent deemed proper, on certificates of responsible officers of the Company~~ United States and ~~its subsidiaries and public officials~~New York law.

Appears in 1 contract

Samples: Distribution Agreement (Eksportfinans Asa)

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~Sxxxxxxx Xxxxxxxxx LLP, ~~Senior Counsel of~~ counsel to the Company, or ~~another of~~ Sxxxxxxx Xxxxxxxxx LLP and Hxxxxx & Wxxxxxxx, each counsel to the Company~~’s lawyers satisfactory~~ , shall have furnished to the ~~Underwriters,~~ Agents a letter addressed to the Agents and dated the ~~Closing Date~~ date hereof stating their opinion to the effect that: (Ai) ~~The~~ the Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the~~ Wisconsin, with corporate ~~power and~~ authority to ~~own, lease~~ own and operate its properties ~~and to conduct its business~~ as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.; (Cii) ~~Each of the Company~~ this Agreement and ~~the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each ~~jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business~~Terms Agreement, ~~except where the failure to so qualify would not have any material adverse effect upon the business~~if any, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the ~~Company~~ Company; (iii) the Indenture is in due and ~~(assuming such Indenture~~ proper form, has been duly ~~authorized~~and validly authorized by the necessary corporate action, has been duly and validly executed and delivered ~~by the Trustee) constitutes~~ and is a valid ~~and~~ instrument legally binding ~~agreement of~~ on the Company~~, enforceable against the Company in accordance with its terms~~, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to an Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform as to legal matters with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ no approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ 1933 Act and the ~~regulations under each of those Acts.~~1933 Act Regulations (except that such counsel need express no opinion as to the financial statements, financial data, statistical data or supporting schedules contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or applicable Terms Agreement nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ therein contemplated, nor compliance with the terms and provisions thereof, will conflict ~~with~~ with, violate or ~~constitute~~ result in a breach ~~of, or default under~~of any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the ~~Company~~ Company, conflict with or ~~any Significant Subsidiary~~ result in a breach of any ~~court~~of the terms, ~~regulatory body~~conditions or provisions of the Articles of Incorporation or the By-laws, ~~administrative agency~~as restated or amended, ~~governmental body, or arbitrator having jurisdiction over~~ of the Company or of any ~~Significant Subsidiary; nor will~~ material agreement or instrument known to such ~~action~~ counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encumbrance of any nature whatsoever upon any of the ~~provisions of the Restated Certificate of Incorporation~~ properties or ~~Bylaws~~ assets of the Company.; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(iii) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (except that such counsel do not need to express any opinion as to the financial statements, financial data, statistical data or supporting schedules contained therein); (xiii) any statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by them and, as to matters of law and legal conclusion, are correct; and (xiv) except as set forth in the Prospectus, to the best knowledge of such counsel there are no pending or threatened legal or administrative proceedings to which the Company is a party or in which any of its property is the subject wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated by this Agreement or any Terms Agreement or the validity or enforceability against the Company of this Agreement or any Terms Agreement, the Indenture or the Notes; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead them to believe that the Registration Statement (other than the financial ~~statements~~ statements, financial data, statistical data and ~~other financial and statistical information~~ supporting schedules included ~~therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference~~ therein, as to which no they do not need to express any belief), at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and at the date hereof, or (if such opinion ~~need be rendered). In rendering such opinion, such counsel may rely (A~~is being delivered in connection with a Terms Agreement pursuant to Section 3(b) ~~as to matters involving~~ hereof) at the ~~application of laws~~ date of any ~~jurisdiction~~ Terms Agreement and at the Settlement Date with respect thereto as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (other than the ~~State~~ financial statements, financial data, statistical data and supporting schedules included therein, as to which they do not need to express any belief) as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of ~~Minnesota~~ any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the ~~United States~~statements therein, to in the ~~extent deemed proper and specified in such opinion~~light of the circumstances under which they were made, not misleading. For the purpose of rendering any of the foregoing opinions, Hxxxxx & Wxxxxxxx may rely exclusively upon the opinion ~~of counsel who are satisfactory to~~ Sxxxxxxx Xxxxxxxxx LLP, counsel for the ~~Underwriters with respect~~ Company, delivered to the ~~transactions contemplated hereby; and~~ Agents pursuant to paragraph (Bc) of this Section 5 as to the organization of the Company and as to all other matters of ~~fact, to~~ Wisconsin law and upon the ~~extent deemed proper, on~~ factual representations made in this Agreement and upon certificates of ~~responsible~~ officers of the Company and ~~its subsidiaries and~~ public officials.

Appears in 1 contract

Samples: Distribution Agreement (Mge Energy Inc)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date pursuant to applicable law or (2) by governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date pursuant to applicable law or (2) by governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the ~~Underwriters~~Agents, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (Bii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (Div) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (Ev) This Agreement has been duly and validly authorized, executed and delivered by the Company. (Fvi) ~~The Indenture~~ Each of the Indentures has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Senior Trustee or the Subordinated Trustee, as applicable) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or the making of payments outside the United States. (Gvii) The Notes are in due and proper form and have been duly established in conformity with Section 301 of the applicable Indenture. When the specific terms of a tranche of Notes have been fixed by an authorized officer of the Company by executing and delivering to the Senior Trustee or the Subordinated Trustee, as applicable, an authentication certificate supplemental to an officers’ certificate, such Notes will be duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the applicable Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, and each holder of Notes will be entitled to the benefits of the applicable Indenture. (Hviii) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “~~Underwriting~~ Supplemental Plan of Distribution (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the ~~captions~~ caption “Plan of Distribution ~~(Conflicts of Interest)” and “Underwriting~~ (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (Iix) ~~The Indenture~~ Each of the Indentures is qualified under the Trust Indenture Act. (Jx) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) ~~has been~~ will be made in the manner and within the time period required by Rule 424(b) under the Securities Act. (Kxi) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an ~~Underwriter~~ Agent and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (Lxii) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (Mxiii) Neither the execution and delivery of this ~~Agreement~~Agreement or of the Indentures, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (Nxiv) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oxv) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the ~~Underwriters~~Agents. (Pxvi) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act ~~regulations~~ Regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the ~~Underwriters~~ Agents and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series P Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series R Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) ~~non-assessable~~nonassessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the captions “Description of the Series O Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative, as to which such counsel need express no opinion), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date or such ~~action~~ Additional Closing Date, as the case may be, and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series X Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly authorized for listing, subject to official notice of issuance, on the Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Acts. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, ~~other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein,~~ as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx~~ At the Closing Date, Xxxxxx X. ~~Xxxx~~Xxxxxxxx, ~~Senior~~ Vice President, General Counsel and Secretary of the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to ~~the Underwriters~~you an opinion, dated the Closing ~~Date~~ Date, in form and substance satisfactory to you, to the effect that: (Ai) ~~The~~ the Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware. (B) The Company has the corporate~~ Missouri, with power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not reasonably be expected to have a Material Adverse Effect; (ii) each subsidiary of the Company has been duly incorporated and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware.~~ its incorporation, with all power and authority (Ccorporate and other) ~~Each of~~ to own its properties and conduct its business as described in the ~~Company and the Significant Subsidiaries~~ Prospectus; each such subsidiary is duly qualified to do business ~~and is~~ as a foreign corporation in good standing in ~~each jurisdiction~~ all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such ~~qualification wherein it owns or leases any material properties or conducts any material business~~qualification, except ~~where~~ to the extent that the failure to be so ~~qualify~~ qualified or to be in good standing would not reasonably be expected to have ~~any material adverse effect upon~~ a Material Adverse Effect; and all of the ~~business, condition or properties~~ issued and outstanding common stock of each subsidiary of the Company ~~and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have~~ has been duly authorized and validly ~~authorized and~~ issued and ~~are~~ is fully paid and nonassessable, and all of such common stock (except ~~as provided in 12 X.X.X. §00 in~~ with regard to 40% of the ~~case~~ common stock of ~~Xxxxx Fargo Bank~~Electric Energy, Inc.) ~~non-assessable, and are directly or indirectly~~ is owned by the Company, directly or indirectly, free from liens, encumbrances and defects of title; (iii) other than as described in the Prospectus, there are no legal or governmental proceedings pending to which the Company ~~free and clear~~ or any of its subsidiaries is a party or of which any ~~perfected security interest and~~property of the Company or such subsidiaries is the subject which, if determined adversely to the ~~knowledge~~ Company or such subsidiaries, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; to the best of such counsel's knowledge, ~~any other security interests, claims, liens~~ no such proceedings are threatened or ~~encumbrances. The Company’s authorized equity capitalization is as set forth~~ contemplated by governmental authorities or threatened by others; and the statements included or incorporated by reference in the ~~Final Prospectus.~~Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters; (Eiv) ~~This~~ this Agreement ~~has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture~~ has been duly authorized, executed and delivered by the ~~Company and~~ Company; (~~assuming such Indenture has~~ v) the Securities have been duly ~~authorized~~authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, ~~executed~~ when issued and delivered by the ~~Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the~~ Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to ~~the provisions of~~ this Agreement ~~and the Indenture~~ against payment of the consideration ~~therefor~~set forth herein, will ~~constitute valid~~ be validly issued, fully paid and ~~legally binding obligations~~ non-assessable; the Common Stock conforms in all material respects to all statements relating thereto contained in the Prospectus and such description conforming to the rights set forth in the instruments defining the same; no holder of the ~~Company, enforceable against~~ Securities will be subject to personal liability solely by reason of being such a holder; and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company ~~in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium~~ or ~~other laws relating to or affecting enforcement~~ any of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture.its subsidiaries; (Hvi) ~~The statements in~~ the ~~Final Prospectus (other than statements furnished in writing~~ form of certificate used to evidence the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the articles of incorporation and by-laws of the Company and the requirements of the NYSE; (vii) the issue and sale of the Securities ~~Act~~by the Company, ~~the Trust Indenture Act~~ and the ~~regulations under each~~ compliance by the Company with all of ~~those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in~~ the ~~Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery~~ provisions of this Agreement, ~~nor~~ and the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations therein~~ herein contemplated, will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to by which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is ~~a party~~ bound or ~~bound, the breach of~~ to which ~~would have a material adverse effect on the financial condition~~ any of the ~~Company and its subsidiaries, taken as a whole,~~ property or ~~violate any order or regulation known to such counsel to be applicable to~~ assets of the Company or any ~~Significant Subsidiary~~ of ~~any court~~its subsidiaries is subject, ~~regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary;~~ nor will such action result in any violation of the provisions of the ~~Restated Certificate~~ articles of ~~Incorporation~~ incorporation or ~~Bylaws~~ by-laws of the ~~Company. (N) To~~ Company or any statute or any order, rule or regulation known to such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree counsel of any court or governmental agency or body ~~including~~ having jurisdiction over the Company or any of its properties; and the execution, delivery and performance of this Agreement will not require the approval or consent of any holder or trustee of any debt or other obligations or securities of the Company which will not have been obtained; (viii) the Company is not, and, after giving effect to the offering and sale of the Securities, the Company will not be, an "investment company," or an entity "controlled" by an investment company, as such terms are defined in the Investment Company Act of 1940, as amended; (ix) the SEC has issued the 1935 Act Order authorizing the issuance and sale of the Securities by the Company; the 1935 Act Order is in full force and effect and is sufficient to authorize the transactions contemplated by this Agreement; and no other consent, approval, authorization, order, registration, filing or qualification of or with any court or governmental agency or body is required for the issue and sale of the Securities by the Company, or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act and the 1939 Act and such consents, approvals, authorizations, orders, registrations, filings or qualifications as may be required under ~~the Blue Sky~~ state securities or blue sky laws ~~of any jurisdiction or regulations adopted by FINRA~~ in connection with the purchase and distribution of the ~~Notes~~ Securities by the Underwriters.; and (Px) ~~Each document~~ the Registration Statement, at the Effective Date, and the Prospectus, at the time it was filed with the SEC pursuant to Rule 424(b) under the ~~Exchange~~ 1933 Act (except in each case as to financial statements and other financial data contained or incorporated by reference ~~in the Final Prospectus~~ therein, upon which such counsel need not pass), complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ requirements of the 1933 Act and the ~~Exchange~~ 1939 Act and the respective rules and regulations ~~thereunder~~ of the SEC thereunder; each Incorporated Document as originally filed pursuant to the 1934 Act (~~other than~~ except as to financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included data contained or incorporated by reference therein, upon which such counsel need not pass) complied as to form when so filed in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC thereunder; the Registration Statement has become, and on the Closing Date is, effective under the 1933 Act and, to the best of such counsel's knowledge, no proceedings for a stop order with respect thereto are threatened or pending under Section 8 of the 1933 Act; and nothing has come to the attention of such counsel that has caused it to believe that the Registration Statement (except as to financial statements and other financial data contained or incorporated by reference therein, upon which such counsel need not pass), at the Effective Date, contained an 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 not misleading or that the Prospectus (except as to financial statements and other financial data contained or incorporated by reference therein, upon which such counsel need not pass), at the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion shall also state that such counsel has no ~~opinion need~~ knowledge of any litigation, pending or threatened, that challenges the validity of the Securities or this Agreement, or that seeks to enjoin the performance of the Company's obligations hereunder or thereunder or that might reasonably be ~~rendered)~~expected to have a Material Adverse Effect except as described in the Prospectus. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials. Such counsel's opinion may further state that it is addressed to the Underwriters and is rendered solely for their benefit and may not be relied upon in any manner by any other person (other than Underwriters' Counsel as to certain matters involving the application of the laws of the State of Missouri in its opinion to the Underwriters on the date of such opinion) without such counsel's prior written consent.

Appears in 1 contract

Samples: Underwriting Agreement (Ameren Corp)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxxx, ~~Senior~~ Assistant General Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of the Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than ~~the~~ any foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended~~, or any notice under Rule 401(g)(2) that would prevent its use~~, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ New York or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxx X. ~~Xxxx~~Xxxxxxxxx, Senior Company Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing ~~Date~~ Date, to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC ~~Holdings Corporation~~ Holdings, LLC (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing ~~corporation~~ limited liability company in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ~~X.X.X.~~ U.S.C. §00 55 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. . (E) The ~~Company’s~~ number and type of equity securities the Company is authorized ~~equity capitalization~~ to issue is as set forth in the Disclosure Package and the Final Prospectus~~. (E) This Agreement has~~ ; all the outstanding shares of capital stock of the Company have been duly and validly ~~authorized~~authorized and issued and are fully paid and non-assessable; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, ~~executed~~ the Disclosure Package and ~~delivered by~~ the ~~Company~~Final Prospectus. (F) The ~~Indenture has~~ Shares have been duly and validly authorized~~, executed~~ ; upon deposit of the Preferred Stock underlying the Shares with the Depositary pursuant to the Deposit Agreement and ~~delivered~~ the due execution by the ~~Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement~~ Depositary of the ~~Company~~Deposit Agreement and the Depositary Receipts, ~~enforceable against the Company~~ in accordance with ~~its terms~~the Deposit Agreement, ~~except as enforcement~~ the Depositary Receipts evidencing the Shares representing the Preferred Stock will entitle the holders thereof ~~may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating~~ to ~~or affecting enforcement of creditors’~~ the rights ~~generally or by general equitable principles (regardless of whether enforceability is considered~~ specified in ~~a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States~~Deposit Agreement. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (MH) ~~Neither~~ None of the execution and delivery of this ~~Agreement~~Agreement or the Deposit Agreement by the Company, ~~nor~~ the consummation by the Company of the transactions contemplated by this Agreement and the ~~Notes nor~~ Deposit Agreement, the ~~incurrence~~ issuance of the ~~obligations therein contemplated~~Preferred Stock underlying the Shares and the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof, (i) will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or (ii) violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will ~~such action~~ the execution and delivery of this Agreement or the Deposit Agreement by the Company, the consummation by the Company of the transactions contemplated by this Agreement and the Deposit Agreement, the issue and sale of the Shares being delivered on the Closing Date and, with respect to the Deposit Agreement, the fulfillment of the terms thereof result in any violation of the provisions of the Restated Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company. (I) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) under the captions “Description of the Series EE Preferred Stock,” “Description of the Depositary Shares” and “Underwriting (Conflicts of Interest)” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions and statements with respect to FINRA set forth under the caption “Underwriting (Conflicts of Interest)” as to which no opinion need be rendered). (J) The Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares. (K) This Agreement has been duly authorized, executed and delivered by the Company. (L) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming such Deposit Agreement has been duly authorized, executed and delivered by the Depositary) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or in law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (M) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (N) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein and statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which no opinion need be rendered, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) complied as to form in all material respects with the requirements of the Securities Act and the regulations under the Securities Act. (O) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the ~~Exchange Act~~ regulations thereunder (other than financial statements and other financial and statistical information included therein, as to which no opinion need be rendered). (Q) No consent, approval, authorization or order of any court or government agency or body is required for the consummation of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Shares by the Underwriters. (R) Such counsel has no reason to believe that (i) the Registration Statement, at the time it became effective (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the ~~Underwriters and other than the Statements of Eligibility on Form T-1 included~~ Representative or ~~incorporated~~ directly by ~~reference therein~~any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading, (ii) the Final Prospectus, as amended or supplemented as of the date hereof and as of the date the opinion is being rendered (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements furnished in writing to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need ~~be rendered~~express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time (other than the financial statements and related notes and other financial and financial reserve information and statistical and accounting data contained therein and other than statements to the Company by or on behalf of an Underwriter through the Representative or directly by any Underwriter, as to which such counsel need express no opinion, it being understood and agreed that the only such information furnished by the Representative or directly by any Underwriter consists of such information described as such in any Underwriter Blood Letter provided by such parties), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of ~~Minnesota~~ North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the ~~Underwriters~~ Underwriters, including special Delaware counsel to the Company with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The opinion ~~of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another~~ of the Company’s ~~lawyers~~ In-House Legal Counsel, dated as of such Commencement Date, in form and substance satisfactory to ~~the Underwriters~~you, ~~dated the Closing Date~~ to the effect that: (A) The Company has been duly incorporated and is a validly existing ~~corporation in good standing~~ under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do transact business and is in good standing in ~~each jurisdiction~~ the jurisdictions in which the conduct of its business or the ownership of its property requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a wholequalification. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (FC) The Indenture has been duly authorized, executed and delivered by the ~~Company and (assuming such Indenture has been duly authorized~~Company, ~~executed and delivered by the Trustee) constitutes~~ is a valid and ~~legally~~ binding agreement of the ~~Company, enforceable against~~ Company and has been qualified under the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States1939 Act. (GD) The Notes have been duly authorized ~~and, when issued, authenticated~~ and ~~delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor,~~ will ~~constitute~~ be valid and ~~legally~~ binding obligations of the ~~Company, enforceable against the~~ Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes~~ will be entitled to the benefits of the Indenture. (HE) This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, except as rights to indemnity hereunder may be limited under applicable law. (F) Neither the execution and delivery of this Agreement nor the issuance and sale of the Notes by the Company as provided herein will contravene the certificate of incorporation or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound or, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries. (G) The statements contained in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the captions “~~Description~~ Certain Terms of ~~Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of~~ the Notes” and “~~Underwriting (Conflicts~~ Plan of ~~Interest),~~Distribution” ~~insofar as they purport to summarize certain provisions of documents or laws specifically~~ fairly present the matters referred to therein~~, are accurate summaries of such provisions or laws or of~~ . (H) Each document incorporated by reference in the ~~sources from~~ Prospectus which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect was filed pursuant to the ~~Financial Industry Regulatory Authority~~1934 Act (except for the financial statements included therein, ~~Inc. (“FINRA”)~~ as to which ~~no opinion~~ such counsel need ~~be rendered)~~not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder. (I~~) The Indenture is qualified under the Trust Indenture Act. (J~~) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (KJ) The Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and ~~each amendment thereof or supplement~~ any supplements and amendments thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the ~~requirements of the Securities Act, the Trust Indenture~~ 1933 Act and the applicable rules and regulations ~~under each~~ of ~~those Acts~~the Commission thereunder. (LK) ~~To such counsel’s knowledge~~Such counsel believes that (except for the financial statements included therein, ~~there are no legal or governmental proceedings pending or threatened~~ as to which ~~are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M~~counsel need not express any belief) ~~Neither the execution and delivery of this Agreement, nor the consummation by the Company~~ each part of the ~~transactions contemplated by this Agreement~~ Registration Statement at the time it became effective, and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as if an ~~exhibit~~ amendment to the ~~Company’s most recent~~ Registration Statement or an Annual Report on Form 10-K ~~or any~~ has been filed by the Company with the commission subsequent ~~Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known~~ to such ~~counsel and to which~~ date, at the ~~Company or any Significant Subsidiary is a party or bound~~time of the most recent such filing, ~~the breach~~ did not contain an untrue statement of ~~which would have~~ a material ~~adverse effect on the financial condition of the Company and its subsidiaries, taken as~~ fact or omit to state a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents material fact required to be ~~described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to~~ stated therein or ~~filed or incorporated by reference as exhibits thereto~~necessary to make the statements therein not misleading, and the ~~descriptions thereof or references thereto are correct. (O) No consent~~Prospectus, ~~approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company~~ as of the ~~transactions contemplated by this Agreement~~Commencement Date, ~~except such as may be required under~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the ~~Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ statements therein, in ~~connection with~~ the ~~purchase and distribution~~ light of the ~~Notes by the Underwriters~~circumstances under which they were made, not misleading. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Distribution Agreement (General Electric Capital Corp)

Opinion of Company Counsel. The Representative shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Xxxxxxx LLP, ~~Senior Counsel of~~ counsel for the Company~~, or another of the Company’s lawyers satisfactory to the Underwriters~~, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters to the effect that: (Ai) The Company (A) has been duly incorporated and is a validly existing as a corporation in good standing under the laws of ~~the State~~ its jurisdiction of ~~Delaware. (B) The Company has the~~ incorporation, with full corporate power and corporate authority to ~~own,~~ own or lease ~~and operate~~ its properties and to conduct its business as described in the ~~Final~~ Registration Statement and Prospectus, and ~~is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association~~ (~~“Xxxxx Fargo Bank”~~B) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified as a foreign corporation to do transact business ~~and is~~ in ~~good standing~~ all jurisdictions in ~~each jurisdiction~~ which the conduct of its business requires such ~~qualification wherein it owns or leases any material properties or conducts any material business~~qualification, except where the failure to so qualify would not have ~~any~~ a material adverse ~~effect~~ affect upon the ~~business,~~ business or financial condition ~~or properties~~ of the ~~Company and its subsidiaries, taken as a whole~~Company. (Dii) ~~All~~ The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; all of the outstanding shares of ~~capital stock~~ Common Stock of ~~each Significant Subsidiary~~ the Company (A) have been duly authorized and validly ~~authorized and~~ issued and are fully paid and nonassessable, (~~except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank~~B) ~~non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and,~~ conform to the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as~~ description set forth in the ~~Final~~ Prospectus, (C) do not have any, and were not issued in violation of any, preemptive rights under the Company's Certificate of Incorporation or Bylaws or any other agreement known to such counsel, and (D) have been issued in compliance with all federal and state securities laws. (~~E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F~~iii) The ~~Indenture~~ Company has ~~been duly authorized~~authorized and reserved for issuance the shares of Common Stock issuable (A) upon exercise of all outstanding options or warrants (other than the Warrants) in accordance with the terms of the applicable options or warrants, ~~executed~~ (B) upon exercise of the Warrants, pursuant to the terms of the Warrants and ~~delivered~~ the Warrant Agreement, and (C) upon exercise of the Representative's Purchase Option. All of the Securities to be issued and sold by the Company ~~and (assuming such Indenture has been duly authorized~~pursuant to this Agreement, ~~executed and delivered by~~ the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Warrant Agreement, and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States. (G) The Notes~~ Representative's Purchase Option have been duly authorized and, when issued and paid for as contemplated herein or upon exercise of the Warrants or the Representative's Purchase Option, will be validly issued, ~~authenticated~~ fully paid and ~~delivered~~ nonassessable. Further, (X) no preemptive rights of stockholders exist with respect to any of the Securities or the issue and sale or exercise thereof; (Y) no stockholder of the Company has any right pursuant to any agreement which has not been waived or honored to require the ~~provisions~~ Company to register the sale of ~~this Agreement~~ any shares owned by such stockholder under the Act in the public offering contemplated herein; and (Z) no further approval or authority of the stockholders or the Board of Directors of the Company is required for the issuance and sale of the Securities to be sold by the Company as contemplated herein. (iv) The certificates evidencing the Securities to be delivered hereunder are in due and proper form under New York law and the ~~Indenture against payment~~ Securities conform in all material respects to the description thereof contained in the Prospectus. (v) Except as specifically disclosed in the Registration Statement and the financial statements of the ~~consideration therefor~~Company and the related notes thereto, ~~will constitute valid and legally binding~~ to the best of such counsel's knowledge, after due inquiry, the Company does not have outstanding any options or warrants to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments, to issue or sell shares of its capital stock or any such options, or warrants, rights, convertible securities or obligations. The descriptions of the Company~~, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or~~ 's stock option and other ~~laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)~~stock-based plans, and ~~except further as enforcement thereof may~~ any other options or warrants heretofore granted by the Company, set forth in the Prospectus are accurate summaries and fairly present the information required to be ~~limited by governmental authority~~ shown with respect to ~~limit, delay or prohibit the making of payments outside the United States,~~ such plans and ~~each holder of Notes will be entitled to the benefits of the Indenture~~rights in all material respects. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (Jvi) The Registration Statement is has become effective under the ~~Securities~~ Act ~~and, to the knowledge of such counsel,~~ and no stop order ~~suspending the effectiveness of the Registration Statement, as amended,~~ proceedings with respect thereto have been instituted or ~~any notice under Rule 401(g)(2) that would prevent its use, has been issued~~ are pending or threatened under the ~~Securities~~ Act and ~~no proceedings for that purpose have been initiated or,~~ nothing has come to ~~the knowledge of~~ such counsel~~, threatened by the SEC~~'s attention to lead them to believe that such proceedings are contemplated; ~~and~~ any required filing of the ~~Final~~ Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b~~) under the Securities Act~~). (Kvii) The Registration Statement, all Preliminary Prospectuses, the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ Act and the ~~regulations under each of those Acts~~Rules and Regulations (except that such counsel need express no opinion as the financial statements, schedules, and other financial and statistical information included or incorporated by reference therein). (Lviii) Such counsel does not know of any Contracts or other documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus which are required to be filed or described, which are not so filed or described as required, and such Contracts and documents as are summarized in the Registration Statement or the Prospectus are fairly summarized in all material respects. (ix) To the best of such counsel’s 's knowledge, there ~~are~~ is no ~~legal~~ action or ~~governmental proceedings~~ suit pending before any court of the United States or ~~threatened which are~~ any foreign jurisdiction of a character required to be disclosed in the ~~Final Prospectus~~Prospectus pursuant to the Act and the Rules and Regulations; there is no action, suit or proceeding threatened against the Company before any U.S. or foreign court or regulatory, governmental or administrative agency or body or arbitral forum of a character required to be disclosed in the Prospectus pursuant to the Act and the Rules and Regulations; to the best of such counsel's knowledge, the Company is not a party or subject to the provisions of any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other ~~than those disclosed therein~~governmental body or agency or arbitral forum. During the course of its ordinary due diligence, which does not include knowledge of the Company's day-to-day operations, nothing has come to the attention of such counsel that would suggest that the Company is not conducting business in compliance with all applicable laws, statutes, rules, and regulations of the State of New York of the United States of America, or any other jurisdiction in which the Company conducts its business, except where the failure to so comply would not have a material adverse effect on the business or financial condition of the Company. (Mx) ~~Neither the~~ The execution and ~~delivery~~ performance of this Agreement, ~~nor~~ the Warrant Agreement, and the Representative's Purchase Option and the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement~~ do not and ~~the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute a~~ result in the breach of, or violation of, any of the terms or provisions of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any ~~indenture~~ Contract to which the Company is a party or ~~other agreement or instrument to~~ by which the Company or any ~~Significant Subsidiary~~ of its property may be bound or affected, except where such breach, violation or default would not have a material adverse effect on the business or financial condition of the Company, or violate any of the provisions of the Certificate of Incorporation or Bylaws of the Company or, to the best of such counsel's knowledge, violate any statute, judgment, decree, order, rule or regulation known to such counsel or any court or of any governmental, regulatory or administrative body or agency or arbitral forum having jurisdiction over the Company or any its property. (xi) The Company is not in violation or default under any provision of any of its Certificate of Incorporation or Bylaws, and, to the best of such counsel's knowledge, the Company is not in violation or of default under any Contracts to which the Company is a party or by which it or any of its properties is bound ~~and which constitutes~~ or may be affected, except where such violation or default would not have a material ~~contract~~ adverse effect on the business or financial condition of the Company. (xii) The Company has the legal right, power, and authority to enter into this Agreement, the Warrant Agreement, and the Representative's Purchase Option on behalf of itself and to perform the transactions contemplated hereby and thereby. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option has been duly authorized, executed, and delivered by the Company. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option is ~~set forth as an exhibit~~ the legal, valid, and binding obligation of the Company, enforceable in accordance with its terms, subject to customary exceptions for bankruptcy, insolvency, and equitable principles, except to the extent that the enforceability of the indemnification provisions of this Agreement and the Representative's Purchase Option may be limited by consideration of public policy under federal and state securities laws. (xiii) To the best of such counsel's knowledge, all approvals, consents, orders, authorizations, designations, registrations, permits, qualifications, licenses, declarations or filings by or with any regulatory, administrative or governmental body necessary in connection with the execution and delivery by the Company of this Agreement, the Warrant Agreement, and the Representative's Purchase Option and the consummation of the transactions herein and therein contemplated (other than as may be required by the NASD, as to which such counsel need express no opinion) have been obtained or made and are in full force and effect. (xiv) To the extent described in the Prospectus, the Company owns or possesses adequate and sufficient rights by license agreements or otherwise to use and enjoy the full rights in and to all patents, patent rights, trade secrets, licenses or royalty arrangements, trademarks and trademark rights, service marks, trade names, copyrights, know how or proprietary techniques, or rights thereto of others, including without limitation for each of the technologies described in the Prospectus, and governmental, regulatory or administrative authorizations, orders, permits, certificates, and consents necessary for the conduct of the business of the Company~~’s most recent Annual Report~~ , except where the failure to possess the same would not have a material adverse effect on ~~Form 10-K~~ the business or financial condition of the Company; to the best of such counsel's knowledge, the Company possesses all governmental, regulatory or administrative authorizations, orders, permits, certificates and consents necessary for the conduct of the business of the Company, except where the failure to possess the same would not have a material adverse effect on the business or financial condition of the Company; such counsel is not aware of any ~~subsequent Quarterly Reports on Form 10-Q~~ pending or ~~Current Reports on Form 8-K~~threatened action, suit, proceeding or claim by others, either domestically or internationally, that the Company is violating any patents, patent rights, copyrights, trademarks or trademark rights, service marks, trade names, licenses or royalty arrangements, trade secrets, know how or proprietary techniques, or rights thereto of others, such counsel is not aware of any rights of third parties to, or any ~~other indenture~~ infringement of, any of the Company's patents, patent rights, trademarks or trademark rights, copyrights, licenses or royalty arrangements, trade secrets, know how or proprietary techniques (including, without limitation, each of the technologies described in the Prospectus), the existence of which would have a material ~~agreement~~ adverse affect on the business or ~~instrument known to~~ financial condition of the Company; and such counsel ~~and to which~~ is not aware of any pending or threatened action, suit, proceeding or claim by others challenging the ~~Company~~ validity or scope of any ~~Significant Subsidiary is a party~~ of such patents, patent rights, trademarks or ~~bound~~trademark rights, copyrights, license or royalty arrangements, trade secrets, know how, or proprietary techniques or rights thereto of others, the ~~breach~~ existence of which would have a material adverse effect on the business or financial condition of the Company. The Company has the patents disclosed to the Representative, and ~~its subsidiaries~~such patents remain in full force and effect. (xv) No transfer taxes are required to be paid under any applicable state law in connection with the sale and delivery of the Securities to the Underwriters hereunder. (xvi) Upon the Closing, ~~taken~~ the Company will be classified as a ~~whole, or violate any order or regulation known to~~ "C" corporation with the Internal Revenue Service. In rendering such opinion such counsel may rely as to ~~be applicable to~~ matters governed by the ~~Company or any Significant Subsidiary~~ laws of ~~any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation~~ states other than New York and federal laws of the ~~provisions~~ United States of America on local counsel in such jurisdictions, provided that such counsel shall state that they believe that they and the ~~Restated Certificate of Incorporation or Bylaws~~ Underwriters are justified in relying on such other counsel. As to factual matters, such counsel may rely on certificates obtained from directors and officers of the Company~~. (N) To~~ , its stockholders, and from public officials. Matters stated to counsel's knowledge shall be made after due and diligent inquiry, and the opinion shall so note that requirement. In addition to the matters set forth above, such ~~counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required~~ opinion shall also include a statement to ~~be described or referred to~~ the effect that they have participated in the preparation of the Registration Statement and the ~~Final~~ Prospectus and nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, or ~~to be filed as exhibits to~~ any amendment thereto, at the time the Registration Statement ~~other than those described~~ or ~~referred~~ amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or ~~filed~~ necessary to make the statements therein not misleading or ~~incorporated by reference as exhibits~~ the Prospectus or any amendment or supplement thereto, ~~and~~ at the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document time it was filed pursuant to Rule 424(b) or at the ~~Exchange Act and incorporated by reference~~ Closing Date or the Option Closing Date, as the case may be, contained an 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 ~~Final Prospectus complied when filed~~ circumstances under which they were made, not misleading (except that such counsel need express no view as to ~~form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than~~ financial ~~statements~~ statements, schedules and other financial information and statistical data and information ~~included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1~~ included or incorporated by reference therein~~, as to which no opinion need be rendered~~). In Such counsel shall permit Xxxxxxxxx Xxxxxxx to rely upon such opinion in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the its opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officialsunder Section 6(g).

Appears in 1 contract

Samples: Underwriting Agreement (Radyne Comstream Inc)

Opinion of Company Counsel. ~~The opinion~~ At the Closing Date, the Agent shall have received the opinion, addressed to the Agent and dated the Closing Date, of ~~Xxxxxxxx X. Xxxx~~Jaffe, ~~Senior Counsel of~~ Raitt, Heuer & Weisx, Xxofessional Corporation, counsel to Sun and the Company, ~~or another of the Company’s lawyers~~ in form and substance satisfactory to the ~~Underwriters~~Agent and its counsel, ~~dated the Closing Date~~ to the effect that: (Ai) ~~The~~ Each of Sun, the Company and the Principal Subsidiary has been duly incorporated or formed, as the case may be, and is a validly existing ~~corporation~~ and in good standing under the laws of ~~the State~~ its respective jurisdiction of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956incorporation or organization, as ~~amended~~the case may be; ~~Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact~~ based upon the ~~business~~ Secretary's Certificate attached thereto as Exhibit A and certificates of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing ~~under~~ or qualification received from the ~~laws~~ respective state governmental agencies, each of ~~the State of Delaware. (C) Each of~~ Sun, the Company and the ~~Significant Subsidiaries~~ Principal Subsidiary is duly qualified to do business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in ~~each jurisdiction~~ all jurisdictions in which its respective ownership of properties or the conduct of its respective businesses requires such qualification ~~wherein it owns or leases any material properties or conducts any material business,~~ (except where the failure to so qualify would not have ~~any~~ a material adverse effect ~~upon~~ on the ~~business~~Company and the Subsidiaries taken as a whole), ~~condition~~ and has all power and authority necessary to own its respective properties and conduct the businesses in which it is engaged, as described in the Prospectus; provided, however, that this opinion shall not apply with respect to any states in which Sun, the Company or ~~properties~~ any of their subsidiaries are required to be qualified to do business solely as a result of the sale of the securities of the Company, Sun or their subsidiaries; all of the issued and outstanding capital stock of each corporate Principal Subsidiary has been duly authorized and validly issued and is fully paid and nonassessable, and, except as set forth in the Prospectus, all of such capital stock is owned by the Company, directly or through Subsidiaries, free and clear of any mortgage, pledge, lien, claim or encumbrance; and all of the partnership interests of the Company and ~~its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock~~ of each ~~Significant~~ partnership Principal Subsidiary have been duly authorized and validly ~~authorized and issued and~~ issued, are fully paid ~~and (~~and, except as ~~provided in 12 X.X.X. §00~~ set forth in the ~~case of Xxxxx Fargo Bank) non-assessable~~Prospectus, ~~and~~ are ~~directly or indirectly~~ owned by Sun or the Company free and clear of ~~any perfected security interest and~~all mortgages, ~~to the knowledge of such counsel~~pledges, ~~any other security interests~~liens, ~~claims, liens~~ claims or encumbrances~~. The Company’s authorized equity capitalization is as set forth in the Final Prospectus.~~; (Eii) ~~This Agreement~~ Such counsel has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating no reason to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of believe that the Registration Statement, as ~~amended~~of its effective date, contained any untrue statement of a material fact or ~~any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or,~~ omitted to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all state a material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are fact required to be ~~disclosed in~~ stated therein or necessary to make the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations statements therein ~~contemplated, will conflict with or constitute a breach of~~not misleading, or ~~default under,~~ the Prospectus contains any ~~indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes~~ untrue statement of a material ~~contract and is set forth as an exhibit~~ fact or omits to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have state a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents fact required to be ~~described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to~~ stated therein or ~~filed or incorporated by reference as exhibits thereto, and~~ necessary to make the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements ~~and other financial and statistical information included~~ therein, ~~other than statements furnished~~ in ~~writing to the Company by or on behalf~~ light of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.the

Appears in 1 contract

Samples: Distribution Agreement (Sun Communities Operating Limited Partnership)

Opinion of Company Counsel. The opinion of Xxxxxxxx X. Xxxx, Senior Counsel of the Company, or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date to the effect that: (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. (B) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by (1) requirements that a claim with respect to the Notes (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (2) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency or units or the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.

Appears in 1 contract

Samples: Underwriting Agreement (Wells Fargo & Company/Mn)

Opinion of Company Counsel. The Representative shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of ~~Xxxxxxxx X. Xxxx~~Xxxxxx & Xxxxxxx LLP, ~~Senior Counsel of~~ counsel for the Company~~, or another of the Company’s lawyers satisfactory to the Underwriters~~, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters to the effect that: (Ai) The Company ~~has~~ and ComStream Corp. ("ComStream") (A) have been duly incorporated and ~~is a~~ are validly existing as a corporation in good standing under the laws of ~~the State~~ their respective jurisdictions of ~~Delaware. (B) The Company has the~~ incorporation, with full corporate power and corporate authority to ~~own,~~ own or lease ~~and operate its~~ their respective properties and to conduct ~~its business~~ their respective businesses as described in the ~~Final~~ Registration Statement and Prospectus, and is (B) to such counsel's knowledge are duly ~~registered~~ qualified as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized foreign corporation to transact business in all jurisdictions in which the ~~business~~ conduct of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which their respective businesses requires such ~~qualification wherein it owns or leases any material properties or conducts any material business~~qualification, except where the failure to so qualify would not have ~~any~~ a material adverse ~~effect~~ affect upon the ~~business,~~ business or financial condition ~~or properties~~ of the Company ~~and its subsidiaries, taken as a whole~~or ComStream. (Dii) ~~All of the outstanding~~ The issued shares of capital stock of each ~~Significant~~ Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and, except as described in the Registration Statement and the Prospectus, are owned of record and beneficially by the Company. (iii) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; all of the outstanding shares of Common Stock of the Company issued subsequent to December 16, 1994 (A) have been duly authorized and validly issued and are fully paid and nonassessable, (~~except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank~~B) ~~non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and,~~ conform to the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as~~ description set forth in the ~~Final~~ Prospectus, (C) do not have any, and to such counsel's knowledge were not issued in violation of any, preemptive rights under the Company's Certificate of Incorporation or Bylaws or any other agreement known to such counsel, and (D) to such counsel's knowledge, have been issued in compliance with all federal and state securities laws. (~~E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F~~iv) The ~~Indenture~~ Company has ~~been duly authorized~~authorized and reserved for issuance the shares of Common Stock issuable (A) upon exercise of all outstanding options or warrants (other than the Warrants) in accordance with the terms of the applicable options or warrants, ~~executed~~ (B) upon exercise of the Warrants, pursuant to the terms of the Warrants and ~~delivered~~ the Warrant Agreement, and (C) upon exercise of the Representative's Purchase Option. All of the Securities to be issued and sold by the Company ~~and (assuming such Indenture has been duly authorized~~pursuant to this Agreement, ~~executed and delivered by~~ the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Warrant Agreement, and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside the United States. (G) The Notes~~ Representative's Purchase Option have been duly authorized and, when issued and paid for as contemplated herein or upon exercise of the Warrants or the Representative's Purchase Option, will be validly issued, ~~authenticated~~ fully paid and ~~delivered~~ nonassessable. Further, (X) to such counsel's knowledge no preemptive rights of stockholders exist with respect to any of the Securities or the issue and sale or exercise thereof; (Y) to such counsel's knowledge no stockholder of the Company has any right pursuant to any agreement which has not been waived or honored to require the ~~provisions~~ Company to register the sale of ~~this Agreement~~ any shares owned by such stockholder under the Act in the public offering contemplated herein; and ~~the Indenture against payment~~ (Z) no further approval or authority of the ~~consideration therefor, will constitute valid and legally binding obligations~~ stockholders or the Board of Directors of the ~~Company, enforceable against~~ Company is required for the issuance and sale of the Securities to be sold by the Company ~~in accordance with their terms, except~~ as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenturecontemplated herein. (Hv) The ~~statements~~ certificates evidencing the Securities to be delivered hereunder are in due and proper form under New York law and the Securities conform in all material respects to the description thereof contained in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)Prospectus. (~~I) The Indenture is qualified under the Trust Indenture Act. (J~~vi) The Registration Statement is has become effective under the ~~Securities~~ Act ~~and, to the knowledge of such counsel,~~ and no stop order ~~suspending the effectiveness of the Registration Statement, as amended,~~ proceedings with respect thereto have been instituted or ~~any notice under Rule 401(g)(2) that would prevent its use, has been issued~~ are pending or threatened under the ~~Securities~~ Act and ~~no proceedings for that purpose have been initiated or,~~ nothing has come to ~~the knowledge of~~ such counsel~~, threatened by the SEC~~'s attention to lead them to believe that such proceedings are contemplated; ~~and~~ any required filing of the ~~Final~~ Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b~~) under the Securities Act~~). (Kvii) The Registration Statement, all Preliminary Prospectuses, the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities Act, the Trust Indenture~~ Act and the ~~regulations under each of those Acts~~Rules and Regulations (except that such counsel need express no opinion as to the financial statements, schedules, and other financial and statistical information included or incorporated by reference therein). (Lviii) Such counsel (i) requested that the Company provide it with copies of all Contracts; (ii) met with officers of the Company to discuss whether all Contracts were in fact delivered to such counsel; and (iii) reviewed all Contracts that were so delivered, and discussed the materiality of such Contracts to the Company and its business with officers of the Company, to determine whether such Contracts were required to be filed or incorporated by reference as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus as required under the Act and the Rules and Regulations. Based upon the foregoing procedures, such counsel does not know of any Contracts of a character required to be filed or incorporated by reference as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus that are not so filed or incorporated by reference or described as required, and each description of such Contracts that is included in the Registration Statement or the Prospectus fairly presents in all material respects the information required under the Act and the Rules and Regulations. (ix) To the best of such counsel’s 's knowledge, there ~~are~~ is no ~~legal~~ action or ~~governmental proceedings~~ suit pending before any court of the United States or ~~threatened which are~~ any foreign jurisdiction of a character required to be disclosed in the ~~Final Prospectus, other than those disclosed therein. (M) Neither~~ Prospectus pursuant to the ~~execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement~~ Act and the ~~Notes nor~~ Rules and Regulations; to the ~~incurrence~~ best of ~~the obligations therein contemplated~~such counsel's knowledge, ~~will conflict with~~ there is no action, suit or ~~constitute a breach of, or default under, any indenture or other agreement or instrument to which~~ proceeding threatened against the Company or any ~~Significant Subsidiary~~ of its Subsidiaries before any U.S. or foreign court or regulatory, governmental or administrative agency or body or arbitral forum of a character required to be disclosed in the Prospectus pursuant to the Act and the Rules and Regulations; to the best of such counsel's knowledge, neither the Company nor any of its Subsidiaries is a party or ~~bound and which constitutes a material contract and is set forth as an exhibit~~ subject to the ~~Company’s most recent Annual Report on Form 10-K~~ provisions of any injunction, judgment, decree or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order ~~or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary~~ of any court, regulatory body, administrative ~~agency~~agency or other governmental body or agency or arbitral forum of a character required to be disclosed in the Prospectus pursuant to the Act and the Rules and Regulations, ~~governmental body~~in each case which is not so disclosed in the Prospectus. (x) The execution and performance of this Agreement, the Warrant Agreement, and the Representative's Purchase Option and the consummation of the transactions herein and therein contemplated do not and will not conflict with or result in the breach of, or ~~arbitrator~~ violation of, any of the terms or provisions of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any Contract to which the Company or ComStream is a party or by which the Company or ComStream or any of their respective properties may be bound or affected, except where such breach, violation or default would not have a material adverse effect on the business or financial condition of the Company or ComStream, or violate any of the provisions of the Certificate of Incorporation or Bylaws of the Company or ComStream or, to the best of such counsel's knowledge, violate any statute, judgment, decree, order, rule or regulation known to such counsel or any court or of any governmental, regulatory or administrative body or agency or arbitral forum having jurisdiction over the Company or any ~~Significant Subsidiary;~~ of its Subsidiaries or any of their respective properties. (xi) Neither the Company nor ~~will such action result~~ any of its Subsidiaries is in violation or default under any ~~violation~~ provision of ~~the provisions~~ any of ~~the Restated~~ their respective Certificate of Incorporation or ~~Bylaws~~ Bylaws. (xii) The Company has the legal right, power, and authority to enter into this Agreement, the Warrant Agreement, and the Representative's Purchase Option on behalf of itself and to perform the transactions contemplated hereby and thereby. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option has been duly authorized, executed, and delivered by the Company. Each of this Agreement, the Warrant Agreement, and the Representative's Purchase Option is the legal, valid, and binding obligation of the Company, enforceable in accordance with its terms, subject to customary exceptions for bankruptcy, insolvency, and equitable principles, except to the extent that the enforceability of the indemnification provisions of this Agreement and the Representative's Purchase Option may be limited by consideration of public policy under federal and state securities laws. (Nxiii) To the best of such counsel’s 's knowledge, ~~there are no contracts~~all approvals, ~~indentures~~consents, ~~mortgages~~orders, ~~loan agreements~~authorizations, ~~notes~~designations, ~~leases~~ registrations, permits, qualifications, licenses, declarations or ~~other instruments~~ filings by or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits theretowith any regulatory, ~~and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court~~ administrative or governmental ~~agency or~~ body ~~including~~ necessary in connection with the ~~SEC is required for the consummation~~ execution and delivery by the Company of ~~the transactions contemplated by~~ this Agreement, ~~except such~~ the Warrant Agreement, and the Representative's Purchase Option and the consummation of the transactions herein and therein contemplated (other than as may be required by the NASD or state securities or "Blue Sky" laws and regulations, as to which such counsel need express no opinion) have been obtained or made and are in full force and effect. (xiv) No transfer taxes are required to be paid under ~~the Blue Sky laws of any jurisdiction or regulations adopted by FINRA~~ New York state law in connection with the ~~purchase~~ sale and ~~distribution~~ delivery of the ~~Notes by~~ Securities to the ~~Underwriters~~Underwriters hereunder. (Pxv) ~~Each document filed pursuant to~~ Upon the ~~Exchange Act and incorporated by reference in~~ Closing, the ~~Final Prospectus complied when filed~~ Company will be classified as ~~to form in all material respects~~ a "C" corporation with the ~~Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing~~ Internal Revenue Service. As to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinionfactual matters, such counsel may rely ~~(A) as~~ on certificates obtained from directors and officers of the Company, its stockholders, and from public officials. Matters stated to counsel's knowledge shall be made after due and diligent inquiry of the attorneys in such firm who have given substantive attention to representation of the Company in connection with this public offering, and the opinion shall so note that requirement. In addition to the matters ~~involving~~ set forth above, the ~~application of laws of any jurisdiction other than~~ Representative shall have received on the ~~State of Minnesota~~ Closing Date or the ~~United States~~Option Closing Date, to as the ~~extent deemed proper and specified in such opinion~~case may be, ~~upon the opinion of counsel who are satisfactory to~~ a letter from Xxxxxx & Whitney LLP, counsel for the ~~Underwriters with respect to~~ Company, dated the ~~transactions contemplated hereby; and (B)~~ Closing Date or the Option Closing Date, as ~~to matters of fact~~the case may be, substantially in the form as set forth in Exhibit C attached hereto. Such counsel shall permit Xxxxxxxxx Xxxxxxx, LLP, to rely upon the ~~extent deemed proper, on certificates of responsible officers of the Company~~ opinions and letters required by this Section 6(f) in rendering its ~~subsidiaries and public officials~~opinion under Section 6(h).

Appears in 1 contract

Samples: Underwriting Agreement (Radyne Comstream Inc)

Opinion of Company Counsel. The ~~opinion of~~ Investors shall have received from Xxxxxxxx ~~X. Xxxx~~Xxxxxxx & Xxxxx, ~~Senior Counsel of~~ PLLC, counsel for the Company, ~~or another~~ an opinion, dated as of the ~~Company’s lawyers~~ Closing, in form and substance satisfactory to the ~~Underwriters~~Investor, ~~dated the Closing Date~~ to the effect that: (Aa) The Company ~~has been duly incorporated and~~ is a corporation, validly existing ~~corporation in good standing~~ under the laws of the State of ~~Delaware. (B) The~~ Washington, and the Company has the requisite corporate power and corporate authority ~~to own, lease and operate its properties and~~ to conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delawarenow being conducted. (Cb) ~~Each of the~~ The Company ~~and the Significant Subsidiaries~~ is ~~duly~~ qualified to do business ~~and is~~ in ~~good standing in each~~ any state or jurisdiction of the United States In which ~~requires such qualification wherein it owns or leases any material properties or conducts any material business, except where~~ the failure to so qualify would ~~not~~ have ~~any~~ a material adverse effect ~~upon the business, condition~~ on its business or ~~properties of the Company and its subsidiaries, taken as a whole~~properties. (Dc) ~~All of~~ The Company has the ~~outstanding shares of capital stock of each Significant Subsidiary have been duly~~ requisite corporate power and ~~validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable~~corporate authority to execute, deliver, and ~~are directly or indirectly owned~~ perform this Agreement and the Investor Rights Agreement. All corporate action necessary for the authorization, execution and delivery by the Company ~~free~~ of this Agreement and ~~clear~~ the Investor Rights Agreement and the authorization, issuance, and delivery of ~~any perfected security interest and~~the Series A Stock being sold hereunder and the Conversion Shares has been taken, to and this Agreement and the ~~knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This~~ Investor Rights Agreement ~~has~~ have been duly and validly authorized, ~~executed and delivered by the Company. (F) The Indenture has been duly authorized~~executed, ~~executed~~ and delivered by the Company and (assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as ~~enforcement thereof~~ enforceability may be limited or affected by ~~bankruptcy, insolvency, reorganization, moratorium or other~~ applicable laws relating to or affecting the enforcement of creditors’ ' rights ~~generally or~~ and by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indentureequitable principles. (Hd) The ~~statements~~ Series A Stock, when issued, sold, and delivered in accordance with the ~~Final Prospectus (other than statements furnished~~ terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in ~~writing to~~ accordance with the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or terms of the ~~sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan~~ Articles of ~~Distribution (Conflicts of Interest)”~~ Incorporation, will be duly and ~~“Underwriting (Conflicts of Interest)”~~ validly issued, fully paid, and ~~statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)~~nonassessable. (Ie) The ~~Indenture~~ authorized capital stock of the Company consists of the preferred stock, common stock and rights described in paragraphs (i), (ii) and (iii) below: (i) Preferred Stock There are 10,000,000 shares of preferred stock authorized, 4,812,074 of which have been designated as Series A Stock and none of which is ~~qualified under~~ outstanding. The rights, privileges, and preferences of the ~~Trust Indenture Act~~preferred stock generally and of the Series A Stock are as stated in the Articles of Incorporation. (Jii) ~~The Registration Statement is effective under~~ Common Stock There are 50,000,000 shares of Common Stock authorized, 13,439,500 shares of which are currently outstanding. Of the ~~Securities Act and, to~~ authorized but unissued Common Stock; 4,812,074 shares are reserved for issuance upon the ~~knowledge of such counsel, no stop order suspending the effectiveness~~ conversion of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SECSeries A Stock; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto effective as of ~~their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein~~August 21, ~~other than statements furnished in writing to~~ 1999, 4,210,564 shares will be reserved for issuance upon the ~~Company by or on behalf~~ exercise of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus stock options granted or to be ~~filed as exhibits~~ granted under the Option Plan; 1,439,500 shares are reserved by board action FOR issuance upon the exercise of warrants granted to the ~~Registration Statement other than those described or referred~~ First Round Investors; 165,775 shares are reserved by board action for issuance upon the exercise of warrants granted to ~~therein or filed or incorporated~~ Ascend; and 153,987 shares are reserved by ~~reference as exhibits thereto, and~~ board action for issuance upon the ~~descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree~~ exercise of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed warrants granted to Pacific Crest Securities Inc. pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the Exchange Act regulations thereunder (other than financial statements and other financial and statistical information included thereinan engagement letter executed March 16, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.1999

Appears in 1 contract

Samples: Series a Preferred Stock Purchase Agreement (Freei Networks Inc)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~[_____________], ~~Senior Counsel of~~ Esq., counsel to the Company, ~~or another of the Company’s lawyers satisfactory~~ shall have furnished to the ~~Underwriters,~~ Agents a letter addressed to the Agents and dated the ~~Closing Date~~ date hereof stating his opinion to the effect that: (Ai) ~~The~~ the Company ~~has been duly incorporated and~~ is a validly organized and existing corporation in good standing under the laws of the State of ~~Delaware.~~Iowa; and the Company is an indirect subsidiary of MidAmerican Energy Holdings Company, an Iowa corporation; (Bii) ~~The Company has the corporate power~~ this Agreement and ~~authority to own~~each Terms Agreement, ~~lease and operate its properties and to conduct its business as described in the Final Prospectus~~if any, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction which requires such qualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Company and its subsidiaries, taken as a whole. (D) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly and validly authorized, executed and delivered by the Company. (F) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee) constitutes~~ is a valid and ~~legally~~ binding agreement of ~~the Company, enforceable against~~ the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by applicable law and except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors' rights generally and general principles of equity; (iii) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action, has been duly and validly executed and delivered and is a valid instrument legally binding on the Company, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States.principles; (Giv) ~~The~~ the Notes are in due and proper form; the issue and sale of the Notes by the Company in accordance with the terms of this Agreement have been duly and validly authorized ~~and~~by the necessary corporate action; the Notes, when ~~issued~~duly executed (which execution may include facsimile signatures of officers of the Company), authenticated and delivered to the purchasers or to an Agent pursuant to ~~the provisions of this Agreement and the Indenture~~ any Terms Agreement, against payment of the agreed consideration therefor, will constitute legal, valid and ~~legally~~ binding obligations of the ~~Company,~~ Company enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting enforcement of creditors’ ' rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, equitable principles; and each holder of Notes will be entitled to the benefits of the Indenture.; (Hv) ~~The~~ the Notes, the Indenture and any Terms Agreement conform in all material respects with the statements concerning them made in the ~~Final Prospectus (other than~~ Prospectus, and such statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions accurately set forth ~~under~~ the ~~captions “Plan of Distribution (Conflicts of Interest)”~~ matters respecting the Notes, the Indenture and ~~“Underwriting (Conflicts of Interest)” and statements with respect~~ the Terms Agreement required to be set forth in the ~~Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered).~~Prospectus; (Ivi) ~~The~~ the Indenture is qualified under the ~~Trust Indenture~~ 1939 Act.; (Jvii) ~~The~~ the orders of the FERC and the ICC referred to in Section 2(a)(xi) hereof pertaining to the Notes have been duly issued and, to the best of the knowledge of such counsel, are still in force and effect; and no further approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is necessary with respect to the issue and sale of the Notes as contemplated by this Agreement and any applicable Terms Agreement or the application of the proceeds thereof; (viii) the Registration Statement is has become effective under the ~~Securities~~ 1933 Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued ~~under the Securities Act~~ and no proceedings for that purpose have been ~~initiated or, to the knowledge of such counsel,~~ instituted or are pending or threatened ~~by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~ under the ~~Securities~~ 1933 Act.; (Kix) ~~The~~ the Registration ~~Statement,~~ Statement and the ~~Final~~ Prospectus and each amendment ~~thereof~~ or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1933 Act Regulations and Sections 305(a)(2) and 305(c) of the ~~regulations under each of those Acts.~~1939 Act (except that such counsel need express no opinion as to the financial statements and financial or statistical data contained therein); (Lx) To such ~~counsel’s knowledge, there are no~~ counsel does not know of any legal or governmental ~~proceedings pending or threatened which are~~ proceeding required to be ~~disclosed~~ described in the ~~Final Prospectus~~Prospectus which is not described as required, ~~other than those disclosed therein.~~or of any contract or document of a character required to be described or incorporated in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described, incorporated or filed as required; (Mxi) ~~Neither~~ neither the execution and delivery of this ~~Agreement,~~ Agreement and the Indenture nor the issuance and sale of the Notes in accordance with the terms of this Agreement or Terms Agreements nor the consummation ~~by the Company~~ of the transactions ~~contemplated by this Agreement and the Notes nor the incurrence of the obligations~~ herein or therein contemplated, nor compliance with the terms and provisions hereof or thereof, will conflict ~~with~~ with, or ~~constitute~~ violate or result in a breach of, ~~or default under~~any law, any ~~indenture or other agreement or instrument to which the Company~~ administrative regulation or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation court decree known to such counsel to be applicable to the ~~Company~~ Company, conflict with or ~~any Significant Subsidiary~~ result in a breach of any ~~court~~of the terms, ~~regulatory body~~conditions or provisions of the Restated Articles of Incorporation, ~~administrative agency, governmental body~~as amended, or ~~arbitrator having jurisdiction over~~ the bylaws of the Company, as amended, or of any material agreement or instrument known to such counsel to which the Company or any ~~Significant Subsidiary; nor will such action~~ of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or constitute a default thereunder, or result in the creation or imposition of any ~~violation~~ lien, charge or encumbrance of any nature whatsoever upon any of the ~~provisions~~ material properties or assets of the ~~Restated Certificate of Incorporation~~ Company or ~~Bylaws of the Company.~~any such subsidiary; (Nxii) ~~To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or~~ the documents ~~required to be described or~~ referred to in ~~the Registration Statement and the Final Prospectus or to be filed~~ Section 2(a)(v) hereof, as ~~exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto~~of their respective filing dates, and the descriptions thereof or references thereto are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Blue Sky laws of any jurisdiction or regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference in the Final Prospectus complied ~~when filed~~ as to form in all material respects with the ~~Exchange~~ applicable requirements of the 1934 Act and the ~~Exchange~~ 1934 Act ~~regulations thereunder~~ Regulations (~~other than~~ except that such counsel does not need to express any opinion as to the financial statements and financial or statistical data contained therein); (xiii) the statements made in the Prospectus which are stated therein to have been made on the authority of such counsel have been reviewed by him and, as to matters of law and legal conclusion, are correct; (xiv) the Company is a public utility authorized by its Restated Articles of Incorporation, as amended, to carry on the businesses in which it is engaged, as set forth in the Prospectus; the Company has the legal right to function and operate as an electric public utility company in the States of Iowa, Illinois and South Dakota, and as a gas public utility company in the States of Iowa, Illinois, South Dakota and Nebraska; and the franchises and permits of the Company are valid and subsisting and authorize the Company to carry on the utility businesses in which it is engaged in the communities and territory covered by such franchises and permits; (xv) the descriptions in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings and contracts and other ~~financial~~ documents are accurate and ~~statistical~~ fairly present the information ~~included therein~~required to be presented; and (xvi) except as set forth in the Prospectus, (A) there are no pending legal proceedings to which the Company is a party or in which any of its property is the subject which are material to the Company, other than ~~statements furnished in writing~~ ordinary routine legal proceedings incident to the business in which the Company ~~by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein~~is engaged, as to which no opinion need be rendered). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as there are no material pending administrative or judicial proceedings to ~~matters~~ which the Company is a party or in which any of ~~fact~~its property is the subject arising under any federal, state or local provisions regulating the discharge of materials into the environment or otherwise relating to the protection of the environment, and, to the ~~extent deemed proper, on certificates of responsible officers~~ best of the knowledge of said counsel, no such proceedings are threatened by governmental authorities; and such letter shall additionally state that nothing has come to the attention of such counsel that would lead him to believe that the Registration Statement, at the time it became effective, and if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, and ~~its subsidiaries~~ at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and ~~public officials~~at the Settlement Date with respect thereto, as the case may be, contains or contained an 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 not misleading or that the Prospectus as amended or supplemented at the date hereof, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 3(b) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Distribution Agreement (Midamerican Energy Co)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx~~ Xxxxxx X. ~~Xxxx~~Xxxxx, Esq., Senior ~~Counsel~~ Vice President/Legal of the Company, or ~~another~~ Xxxxxxxx X. Xxxxxxxxxx, Esq., Vice President and General Counsel of the ~~Company’s lawyers~~ Company dated as of such Closing Date or Settlement Date, in form and substance satisfactory to the ~~Underwriters~~Agents and the Agents' counsel, ~~dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware. (Bii) The Company has ~~the~~ corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Final~~ Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware. (Ciii) ~~Each~~ To the best of such counsel's knowledge, the Company ~~and the Significant Subsidiaries~~ is duly qualified as a foreign corporation to do transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification ~~wherein it owns or leases any material properties or conducts any material business, except where~~ and in which failure of the ~~failure~~ Company to be so ~~qualify~~ qualified and in good standing would ~~not~~ have ~~any~~ a material adverse effect upon the ~~business~~Company and its subsidiaries considered as a single enterprise. (iv) This Agreement (and, ~~condition or properties~~ if the opinion is being given pursuant to Section 6(c) hereof as a result of the Company ~~and its subsidiaries~~having entered into a Terms Agreement requiring such opinion, ~~taken as a whole. (D~~the applicable Terms Agreement) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the Final Prospectus. (E) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming ~~such~~ the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and ~~legally~~ binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States~~principles. (Gvi) The Notes are in the form contemplated by the Indenture, have been duly authorized by all necessary corporate action and, when ~~issued,~~ executed and authenticated as specified in the Indenture and delivered ~~pursuant to the provisions of this Agreement and the Indenture~~ against payment of the consideration ~~therefor~~therefor in accordance with this Agreement, as supplemented by the applicable Terms Agreement, if any, will ~~constitute~~ be valid and ~~legally~~ binding obligations of the Company, enforceable ~~against the Company~~ in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ or other laws relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally~~ generally, or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United Statesprinciples, and each holder of Notes will be entitled to the benefits of the Indenture. (Hvii) The statements in the ~~Final~~ Prospectus ~~(other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein)~~ under the ~~captions “~~caption "Description of Debt Securities~~,” “Plan of Distribution (Conflicts of Interest),” “~~" and in the Prospectus Supplement under the caption "Description of the Notes~~” and “Underwriting (Conflicts of Interest),”~~ ", insofar as they purport to summarize certain provisions of documents ~~or laws~~ specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered)provisions. (Iviii) The Indenture is qualified under the ~~Trust Indenture~~ 1939 Act. (Jix) The Registration Statement is effective under the ~~Securities~~ 1933 Act and, to the ~~knowledge~~ best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration ~~Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use,~~ Statement has been issued under the ~~Securities~~ 1933 Act ~~and no~~ or proceedings ~~for that purpose have been~~ therefor initiated ~~or, to the knowledge of such counsel,~~ or threatened by the ~~SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act~~Commission. (Kx) ~~The~~ At the time the Registration ~~Statement~~Statement became effective, the ~~Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates~~ Registration Statement (other than the financial statements and other financial ~~and~~ or statistical ~~information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1~~ data included or incorporated by reference therein, as to which no opinion need be rendered) ~~complied~~ appeared on its face to comply as to form in all material respects with the requirements of the ~~Securities~~ 1933 Act, the ~~Trust Indenture~~ 1939 Act and the regulations under each of those Acts. (Lxi) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Final Prospectus~~Registration Statement, other than those disclosed therein~~. (M) Neither the execution~~ , and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with all pending legal or ~~constitute a breach of, or default under, any indenture or other agreement or instrument~~ governmental proceedings to which the Company or any ~~Significant Subsidiary~~ subsidiary is a party or ~~bound and~~ of which ~~constitutes a material contract and~~ any of their property is ~~set forth as an exhibit~~ the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the ~~Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K~~business, ~~or any other indenture or material agreement or instrument known to such counsel and to which~~ are, considered in the ~~Company or any Significant Subsidiary is a party or bound~~aggregate, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Companynot material. (Nxii) To the best of such counsel~~’s knowledge~~'s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments ~~or documents~~ required to be described or referred to in the Registration Statement ~~and the Final Prospectus~~ or to be filed as exhibits ~~to the Registration Statement~~ thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, ~~and~~ the descriptions thereof or references thereto are correct, and, except for certain minor matters which, either individually or in the aggregate, will not or do not have a material adverse effect on the Company or its business, no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference. (Oxiii) No consent, approval, authorization, or order ~~or decree~~ of any court or governmental authority or agency ~~or body including the SEC~~ is required ~~for~~ in connection with the ~~consummation by the Company~~ sale of the ~~transactions contemplated by this Agreement~~Notes, except such as may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, or state securities laws; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and the Indenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, or any law, administrative regulation or administrative or court decree, known to such counsel to be applicable to the Company, of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company, except that such counsel need express no opinion as to any state securities or Blue Sky ~~laws of~~ laws, or any ~~jurisdiction~~ rules or regulations ~~adopted by FINRA~~ thereunder; nor will such action result in ~~connection with the purchase and distribution~~ any violation of the ~~Notes by~~ provisions of the ~~Underwriters~~charter or bylaws of the Company. (Pxiv) Each document filed pursuant to the ~~Exchange~~ 1934 Act and incorporated by reference in the ~~Final~~ Prospectus ~~complied~~ (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which counsel need not comment), appeared on its face to comply when filed as to form in all material respects with the ~~Exchange~~ 1934 Act and the ~~Exchange Act~~ rules and regulations thereunder (other than financial statements and other financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered)promulgated thereunder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of ~~any jurisdiction other than~~ the State of ~~Minnesota or the United States~~New York, to the extent deemed proper and specified in such opinion, upon the opinion of ~~counsel who are satisfactory to~~ Xxxxx & Wood LLP, counsel for the ~~Underwriters with respect~~ Agents, delivered pursuant to ~~the transactions contemplated hereby;~~ subsection (a)(2) hereof and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and ~~its subsidiaries and~~ public officials.

Appears in 1 contract

Samples: Distribution Agreement (Comdisco Inc)

Opinion of Company Counsel. The opinion of ~~Xxxxxxxx X. Xxxx~~Andrew -------------------------- D. Hendry, Esq., Senior Vice President, General Counsel and Secrxxxxx of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters, dated the Closing Date~~ to the effect that: (Ai) The Company has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware~~. (B) The Company has the~~ , with corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its business as described in the ~~Final~~ Prospectus, . (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation in good standing under the laws of ~~the State of Delaware. (C) Each of the Company and the Significant Subsidiaries is duly qualified to do business and is in good standing in~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any material properties~~ real properties, or conducts any ~~material~~ business, so as to require such qualification, except where the failure to be so ~~qualify~~ qualified would not have ~~any~~ a material adverse effect ~~upon the business, condition or properties of~~ on the Company and its subsidiaries, taken as a ~~whole~~whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both the Agents and he are justified in relying upon such opinions and certificates). (Diii) ~~All~~ Each Significant Subsidiary had been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the ~~outstanding~~ issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and ~~issued and~~ issued, are fully paid and nonassessable, and (except for directors' qualifying shares and except as ~~provided in 12 X.X.X. §00~~ otherwise set forth in the ~~case of Xxxxx Fargo Bank~~Prospectus) ~~non-assessable, and~~ are owned directly or indirectly ~~owned~~ by the ~~Company~~ Company, free and clear of ~~any perfected security interest and~~all liens, ~~to the knowledge of such counsel~~encumbrances, ~~any other security interests,~~ equities or claims~~, liens or encumbrances.~~ . (iv) The ~~Company’s~~ Company has an authorized ~~equity~~ capitalization is as set forth in the ~~Final~~ Prospectus. (Ev) This Agreement has been duly ~~and validly~~ authorized, executed and delivered by the Company. (Fvi) The issuance and sale of the Notes have been duly authorized by all necessary corporate action of the Company. The Notes when duly authenticated by the Trustee and issued in accordance with the provisions of this Agreement and the Indenture will be duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented under the heading "Description of Debt Securities" and "Description of Notes". (vii) The Indenture has been duly authorized, executed and delivered by the Company and ~~(assuming such Indenture has been duly authorized, executed and delivered by the Trustee)~~ constitutes a valid and legally binding ~~agreement~~ instrument of the Company, enforceable ~~against the Company~~ in accordance with its terms, ~~except as enforcement thereof may be limited by~~ subject to bankruptcy, insolvency, reorganization, moratorium or and other laws of general applicability relating to or affecting ~~enforcement of~~ creditors’ ' rights ~~generally or by~~ and to general ~~equitable principles (regardless of whether enforceability is considered in a proceeding in~~ equity ~~or at law),~~ principles; and ~~except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit~~ the ~~making of payments outside~~ Indenture has been duly qualified under the ~~United States~~1939 Act. (Gviii) The issue and sale of the Notes ~~have been duly authorized and, when issued, authenticated~~ by the Company and ~~delivered pursuant to~~ the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, any Terms Agreement, the Indenture and the Indenture against payment of the consideration therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law)Notes, and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (H) The statements in the Final Prospectus (other than statements furnished in writing to the Company by or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived (other than the foreign selling restrictions set forth under the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) as to which no opinion need be rendered). (I) The Indenture is qualified under the Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued under the Securities Act and no proceedings for that purpose have been initiated or, to the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. (K) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the regulations under each of those Acts. (L) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation ~~by the Company~~ of the transactions herein and therein contemplated ~~by this Agreement and the Notes nor the incurrence of the obligations therein contemplated,~~ will not conflict with or ~~constitute~~ result in a breach or violation of any of the terms or provisions of, or constitute a default under, any ~~indenture~~ indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel as being material to the Company and its subsidiaries taken as a whole to which the Company or any ~~Significant Subsidiary~~ of its subsidiaries is a party or ~~bound~~by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, ~~the~~ which conflict, breach ~~of which~~ or default would have a material adverse effect on the consolidated financial ~~condition~~ position or consolidated results of operations of the ~~Company and its subsidiaries~~Company, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the ~~Restated~~ Certificate of Incorporation or ~~Bylaws~~ By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, which violation in each case would have a material adverse effect on the consolidated financial position or consolidated results of operations of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the Final Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct. (Oix) No consent, approval, authorization, ~~order~~ order, registration or ~~decree~~ qualification of or with any such court or governmental agency or body ~~including the SEC~~ is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any Terms Agreement or the Indenture, except such consents, approvals, authorizations, registrations or qualifications as may be required under the 1933 Act and the 1939 Act and those under state securities, Blue Sky ~~laws of any jurisdiction~~ or ~~regulations adopted by FINRA in connection with the purchase and distribution of the Notes by the Underwriters~~foreign laws. (Px) ~~Each document filed pursuant~~ To the best of such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which are probable to result in an adverse determination and which, if determined adversely to the ~~Exchange Act and~~ Company or any of its subsidiaries, would have a materil adverse effect on the consolidated financial position or the annual pre-tax consolidated results of operations of the Company; and, to the best of such counsel's knowledge, without special inquiry, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (xi) To the best of such counsel's knowledge, all contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be incorporated by reference into the Prospectus or described in the ~~Final~~ Registration Statement or the Prospectus ~~complied~~ have been filed or incorporated by reference or described as required. (xii) The Registration Statement has been declared effective under the 1933 Act and, to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (xiii) The Registration Statement and the Prospectus, or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and related schedules therein and other financial data or the Statement of Eligibility on Form T-1 of the Trustee under the Indenture, as to which such counsel need express no opinion), when ~~filed~~ the Registration Statement became effective complied, and as of the date hereof comply, as to form in all material respects with the ~~Exchange~~ requirements of the 1933 Act and the ~~Exchange~~ 1939 Act and the rules and regulations ~~thereunder~~ of the Commission thereunder. (xiv) The information in the Prospectus under the caption "Description of Notes", "Description of Debt Securities", and information, if any, in the Prospectus under the caption "United States Taxation" (or similar caption), to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel or by attorneys under the supervision of such counsel and is correct in all material respects. (xv) The documents incorporated by reference into the Registration Statement and the Prospectus or any further amendments or supplements thereto made by the Company prior to the date hereof (other than the financial statements and schedules therein and other financial ~~and statistical information included therein, other than statements furnished in writing to~~ data or the ~~Company by or on behalf of the Underwriters and other than the Statements~~ Statement of Eligibility on Form T-1 ~~included or incorporated by reference therein~~of the Trustee under the Indenture, as to which such counsel need express no ~~opinion need be rendered~~opinion), at the time they were filed, complied, and as of the date hereof comply, as to form in all material respects with the requirements of the 1933 Act and the 1934 Act and the rules and regulations of the Commission thereunder. In ~~rendering~~ giving such ~~opinion,~~ opinion such counsel ~~may rely (A)~~ shall also state that in the course of his duties as General Counsel of the Company he consults with other officers of the Company as to ~~matters involving~~ ongoing matters, and he or an attorney under his supervision has reviewed the ~~application~~ Registration Statement and the Prospectus and has participated in the preparation of ~~laws~~ documents incorporated by reference therein and, although such counsel has not made any other specific inquiry for the purpose of rendering this opinion and 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, no facts have come to such counsel's attention that lead it to believe that the Registration Statement at the time it became effective, or any further amendment thereto (including the filing of an Annual Report on Form 10-K with the Commission), as of its effective date, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date of any ~~jurisdiction other than~~ Terms Agreement and at the ~~State~~ Settlement Date with respect thereto, as the case may be, contains or contained an untrue statement of ~~Minnesota~~ a material fact or omits or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, or any further amendment or supplement thereto, as of its date, or (if such opinion is being delivered in connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms Agreement and at the Settlement Date with respect thereto, as the case may be, contains or contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or that, as of the date hereof, either the Registration Statement or the ~~United States,~~ Prospectus or any further amendment or supplement thereto made by the Company prior to the ~~extent deemed proper~~ date hereof contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been required to and ~~specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters~~ does not express any comment with respect to the ~~transactions contemplated hereby;~~ financial statements and ~~(B) as~~ schedules and other financial data included in the Registration Statement or Prospectus or the Statement of Eligibility on Form T-1 of the Trustee under the Indenture). In giving the opinion required by this Section 5(a)(1), such counsel shall be entitled to rely upon opinions of local counsel and tax counsel and, in respect of matters of fact, ~~to the extent deemed proper, on~~ upon certificates of ~~responsible~~ officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Agents and ~~its subsidiaries~~ he are justified in relying upon such opinions and ~~public officials~~certificates.

Appears in 1 contract

Samples: Distribution Agreement (Colgate Palmolive Co)

Opinion of Company Counsel. ~~The opinion of Xxxxxxxx X. Xxxx~~Preston Gates & Ellis LLP, ~~Senior Counsel~~ counsel for the Company, shall have fxxxxxxxx xx xhe Xxxxxsentative, at the request of the Company, ~~or another of the Company’s lawyers satisfactory to the Underwriters~~their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, to the effect that: (Ai) ~~The~~ the Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion; the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; and, to the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; (ii) the Registration Statement and the Prospectus (other than the financial statements and related schedules therein, related notes thereto and financial and statistical information derived therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act; (iii) the Company has been duly incorporated and is a validly existing as a corporation under the laws of the State of Washington, with full corporate power and authority to own, lease or operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing (in jurisdictions where such concept applies) under the laws of each jurisdiction in which it owns or leases material properties or conducts material business and where the failure to be so qualified would, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Prospectus; (iv) each of the Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Delaware.~~ Delaware (~~B) The Company~~ except for WWC Texas RSA Limited Partnership ("WWC Texas LP"), which has ~~the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus,~~ been duly formed and is ~~duly registered~~ validly existing as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings,” and together with Xxxxx Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation limited partnership in good standing under the laws of the State of Delaware~~. (C) Each~~ , and WWC License LLC, which has been duly formed and is validly existing as a limited liability company in good standing under the laws of the ~~Company~~ State of Delaware), with full corporate (or partnership, in the case of WWC Texas LP, or limited liability company, in the case of WWC License LLC) power and authority to own, lease or operate its properties and conduct its business as described in the ~~Significant Subsidiaries~~ Prospectus, and is duly qualified to do business as a foreign corporation (or partnership, in the case of WWC Texas LP, or limited liability company, in the case of WWC License LLC) and is in good standing (in jurisdictions where such concept applies) under the laws of each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~any~~ material properties or conducts ~~any~~ material ~~business, except~~ business and where the failure to be so ~~qualify would not~~ qualified would, individually or in the aggregate, have ~~any material adverse effect upon~~ a Material Adverse Effect, except as set forth in or contemplated in the ~~business, condition or properties~~ Prospectus; (v) the authorized capital stock of the Company consists of 300,000,000 shares of authorized Class A common stock and ~~its subsidiaries~~Class B common stock, ~~taken as a whole. (D) All~~ no par value, and 50,000,000 shares of authorized preferred stock; all of the outstanding shares of capital stock of ~~each Significant Subsidiary~~ the Company have been duly and validly authorized and issued and are fully paid and nonassessable; and (x) such shares are not subject to any pre-emptive or similar rights and (y) except as provided in 12 X.X.X. §00 in the case of Xxxxx Fargo Bank) non-assessable, and are directly or indirectly owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances. The Company’s authorized equity capitalization is as set forth in the ~~Final~~ Prospectus., no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, such shares of capital stock of or ownership interests in the Company are outstanding in the case of (x) or (y) either (1) to such counsel's knowledge or (2) pursuant to (A) the Company's certificate of incorporation or bylaws or (B) any agreement or other document to which the Company or any of its subsidiaries is a party or is subject to or bound which has been filed as an exhibit to the Registration Statement or to any report that has been incorporated by reference into the Registration Statement or the Prospectus; (Evi) ~~This Agreement has~~ all of the issued and outstanding shares of capital stock (or, in the case of WWC Texas LP, partnership interests, or, in the case of WWC License LLC, membership interests) of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and, except as otherwise set forth in the Prospectus (and except for minority interests representing less than 3% of such Significant Subsidiary), are owned by the Company either directly or through wholly-owned subsidiaries; (vii) the Shares to be issued and sold by the Company hereunder have been duly authorized, ~~executed~~ and when delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable and conform to the descriptions thereof in the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights either (x) to such counsel's knowledge or (y) pursuant to (1) the Company.'s certificate of incorporation or bylaws or (2) any agreement or other document to which the Company or any of its subsidiaries is a party or is subject to or bound which has been filed as an exhibit to the Registration Statement or to any report that has been incorporated by reference into the Registration Statement or the Prospectus; (Fviii) ~~The Indenture~~ the statements set forth in the Prospectus under the heading "Description of Common Stock", to the extent that they constitute summaries of the terms of the Common Stock, matters of law or regulation or legal conclusions, accurately and completely summarize the matters described therein in all material respects; (ix) the Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action (corporate and other) required to be taken for the due and proper authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly taken; (x) this Agreement has been duly authorized, executed and delivered by the Company; (xi) No consent, approval, authorization, filing, order, registration or qualification of or with any federal or Washington court or arbitrator or governmental or regulatory authority is required (other than any consent, approval, authorization, filing, order, registration or qualification under the Communications Act or the FCC Rules as to which such counsel need express no opinion) for the execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares to be sold by the Company and delivered on the Closing Date, and compliance by the Company with the terms hereof and the consummation of the transactions contemplated by this Agreement, except for (~~assuming~~ x) the registration of the Shares under the Securities Act, (y) such ~~Indenture~~ consents, approvals, authorizations, filings, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters or (z) such consents, approvals, authorizations, filings, orders and registrations or qualifications the failure of which to be obtained, individually or in the aggregate, would not affect the validity of the Shares, their issuance or delivery or the transactions contemplated by this Agreement or result in a Material Adverse Effect; (xii) the execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares to be sold by the Company and delivered on the Closing Date, and compliance by the Company with the terms of, and the consummation of the transactions contemplated by, this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument which has been ~~duly authorized~~filed as an exhibit to the Registration Statement or to any report that has been incorporated by reference into the Registration Statement or the Prospectus or is otherwise known to such counsel, ~~executed and delivered by the Trustee~~(ii) ~~constitutes a valid and legally binding agreement~~ result in any violation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States. (G) The Notes have been duly authorized and, when issued, authenticated and delivered pursuant to the provisions of ~~this Agreement and~~ the ~~Indenture against payment~~ charter or by-laws or similar organizational documents of the ~~consideration therefor, will constitute valid and legally binding obligations~~ Company or any of ~~the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium~~ its Significant Subsidiaries or ~~other laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles~~ (regardless of whether enforceability is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by governmental authority to limit, delay or prohibit the making of payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture. (Hiii) ~~The statements~~ result in the ~~Final Prospectus (other than statements furnished in writing to the Company by~~ violation of any Washington or on behalf of an Underwriter expressly for use therein) under the captions “Description of Debt Securities,” “Plan of Distribution (Conflicts of Interest),” “Description of Notes” and “Underwriting (Conflicts of Interest),” insofar as they purport to summarize certain provisions of documents federal law or ~~laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived~~ statute (other than the ~~foreign selling restrictions set forth under~~ Communications Act or the captions “Plan of Distribution (Conflicts of Interest)” and “Underwriting (Conflicts of Interest)” and statements with respect to the Financial Industry Regulatory Authority, Inc. (“FINRA”) FCC Rules as to which such counsel need express no ~~opinion need be rendered~~opinion) or any judgment, order, decree, rule or regulation of any federal or Washington court or arbitrator or governmental or regulatory authority binding on the Company of which such counsel is aware, except, in the case of clause (iii)., such violations which would not, individually or in the aggregate, affect the validity of the Shares, their issuance or delivery or the transactions contemplated by this Agreement or result in a Material Adverse Effect; (Ixiii) ~~The Indenture~~ to the knowledge of such counsel, except as described in the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is ~~qualified~~ or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement; to the ~~Trust Indenture Act. (J) The Registration Statement is effective under the Securities Act~~ knowledge of such counsel, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and, to the knowledge of such counsel, (i) there are no ~~stop order suspending the effectiveness of the Registration Statement~~current or pending legal, ~~as amended~~governmental or regulatory actions, suits or ~~any notice under Rule 401(g)(2)~~ proceedings that ~~would prevent its use, has been issued~~ are required under the Securities Act ~~and no proceedings for that purpose have been initiated or,~~ to ~~the knowledge of such counsel, threatened by the SEC; and any required filing of the Final Prospectus pursuant to Rule 424(b) has been made~~ be described in the ~~manner~~ Prospectus that are not so described and ~~within the time period~~ (ii) there are no statutes, regulations or contracts or other documents that are required ~~by Rule 424(b)~~ under the Securities ~~Act.~~Act to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus that are not so filed or described; (Kxiv) ~~The Registration Statement~~the Company is not and, after giving effect to the ~~Final~~ offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" within the meaning of the Investment Company Act; (xv) the documents incorporated by reference in the Prospectus ~~and each~~ or any further amendment ~~thereof~~ or supplement thereto ~~as of their respective effective or issue dates (~~made by the Company prior to the Closing Date other than the financial statements and ~~other~~ related schedules therein, related notes thereto and financial and statistical information contained therein, other than statements furnished in writing to the Company by or on behalf of an Underwriter and other than the Statements of Eligibility on Form T-1 included or incorporated by reference thereinderived therefrom, as to which such counsel need express no ~~opinion need be rendered)~~ opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, ~~the Trust Indenture Act~~ as applicable, and the rules and regulations ~~under each~~ of ~~those Acts.~~the Commission thereunder; and (Lxvi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein. (M) Neither the execution and delivery of this Agreement, nor the consummation by the Company of the transactions contemplated by this Agreement and the Notes nor the incurrence of the obligations therein contemplated, will conflict with or constitute a breach of, or default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel ~~and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would~~ shall also state that they have ~~a material adverse effect on the financial condition~~ participated in conferences with representatives of the Company and with representatives of its ~~subsidiaries, taken as a whole, or violate any order or regulation known to such~~ independent accountants and its counsel ~~to be applicable to~~ at which conferences the ~~Company or any Significant Subsidiary~~ contents of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Bylaws of the Company. (N) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement and the ~~Final~~ Prospectus and any amendment and supplement thereto and related matters were discussed and, although such counsel assumes no responsibility for the accuracy, completeness or fairness of the Registration Statement, the Prospectus and any amendment or supplement thereto (except as expressly provided above), nothing has come to ~~be filed as exhibits~~ the attention of such counsel to cause such counsel to believe that the Registration Statement ~~other than those described~~ or ~~referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references~~ any further amendment thereto ~~are correct. (O) No consent, approval, authorization, order or decree of any court or governmental agency or body including the SEC is required for the consummation~~ made by the Company prior to the Closing Date, as of its effective date and as of the ~~transactions contemplated by this Agreement~~Closing Date, ~~except such~~ contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement thereto as ~~may be required under the Blue Sky laws~~ of ~~any jurisdiction or regulations adopted by FINRA in connection with the purchase~~ its date and ~~distribution~~ as of the ~~Notes by~~ Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the ~~Underwriters. (P) Each document filed pursuant to the Exchange Act and incorporated by reference~~ statements therein, in the ~~Final Prospectus complied when filed as to form in all material respects with~~ light of the ~~Exchange Act and the Exchange Act regulations thereunder (~~circumstances under which they were made, not misleading other than the financial statements and ~~other~~ related schedules therein, related notes thereto and financial and statistical information included therein, other than statements furnished in writing to the Company by or on behalf of the Underwriters and other than the Statements of Eligibility on Form T-1 included or incorporated by reference thereinderived therefrom, as to which such counsel need express no ~~opinion need be rendered~~opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Minnesota or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of counsel who are satisfactory to counsel for the Underwriters with respect to the transactions contemplated hereby; and (B) as to matters of ~~fact, to the extent deemed proper,~~ fact on certificates of responsible officers of the Company and ~~its subsidiaries~~ public officials that are furnished to the Underwriters. The opinion of Preston Gates & Ellis LLP described above shall be rendered to txx Xxxxxxxxxxrs xx xxe request of the Company and ~~public officials~~shall so state therein.

Appears in 1 contract

Samples: Underwriting Agreement (Western Wireless Corp)

Common use of Opinion of Company Counsel Clause in Contracts