Opinion of Company's Counsel. The Purchaser shall have received from Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation, counsel for the Company, an opinion dated the date of the Closing, in form and scope satisfactory to the Purchaser and its counsel, to the effect that: (A) The Company is a corporation duly incorporated, validly existing and subsisting under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver and perform the Transaction Documents and to issue and deliver the Note Shares in accordance with the terms of the Convertible Notes and the Charter. (B) The Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (C) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (D) The authorized capital stock of the Company consists of (a) 5,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Convertible Note Purchase Agreement (Thrupoint Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation~~Hale xxx Dorr XXX, counsel for the Company, an opinion dated ~~the date~~ as of the ~~Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation~~, except that such counsel shall not be required to express any opinion with respect to~~ . To the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review~~ knowledge of ~~good standing certificates by~~ such counsel, the Company has no subsidiaries. The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyVirginia. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement and the ~~Transaction Documents~~ Second Amended and Restated Registration Rights Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The Transaction Documents~~ This Agreement and the Second Amended and Restated Registration Rights Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Second Amended and Restated Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement and the ~~Transaction Documents~~Second Amended and Restated Registration Rights Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (D) The authorized capital stock of the Company consists of (a) 5,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documentsthereunder, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.and

Appears in 1 contract

Samples: Convertible Preferred Stock Purchase Agreement (Careerbuilder Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from ~~Xxxxxxx~~---------------------------- Xxxxx, ~~Xxxxxxxx~~ Xxxx & ~~Kotel, a Professional Corporation~~Xxxxx LLP, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, substantially to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of ~~its jurisdiction~~ the State of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax yearDelaware. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company is duly ~~licensed or~~ qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyMassachusetts. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Registration Rights Agreement and the Stockholders Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The Transaction Documents~~ This Agreement, the Registration Rights Agreement and the Stockholders Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Registration Rights Agreement and the Stockholders Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York~~ law, the Charter or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known to such counsel~~ or any ~~material~~ indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by~~ to which the Company, ~~to which the Company~~ or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Purchasers of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights ~~Agreement,~~ Agreement may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists ~~of (a) 5,000,000~~ of: 7,050,000 shares of Series A Common Stock, par value $0.001; 64,031 shares of Series B Common Stock, par value $0.001; 81,366 shares of Series C Common Stock, par value $0.001; 59,250 shares of Series D Common Stock, par value $0.001; 249,900 shares of Series E Common Stock, par value $0.001; 562,500 shares of Series A Convertible Preferred Stock, par value $.01 per share; 344,043 shares of ~~which 170,000 shares have been designated~~ Series A B Convertible Preferred Stock, ~~1,620,700 have been designated~~ par value $.01 per share; 41,544 shares of Series C Convertible Preferred Stock par value $.01 per share; and 891,314 shares of Series D Convertible Preferred Stock par value $.01 per share, Immediately prior to the Closing, the following stock of the Company will be issued, outstanding, fully paid and nonassessable: 3,717,000 shares of Series A Common Stock, par value $0.001; 64,031 shares of Series B Common Stock, par value $0.001; 81,366 shares of Series C Common Stock, par value $0.001; 59,250 shares of Series D Common Stock, par value $0.001; 250,050 shares of Series E Common Stock, par value $0.001; 562,500 shares of Series A Convertible Preferred Stock, par value $.01 per share; 344,043 shares of Series B Convertible Preferred Stock, par value $.01 per share; 41,544 shares of Series C Convertible Preferred Stock par value $.01 per share; and ~~1,650,000 have been designated~~ 98,736 shares of Series C D Convertible Preferred Stock ~~and (b) 150,000,000 shares of Common Stock~~par value $.0l per share. Immediately prior to the Closing, ~~based solely on a review of~~ the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock or Preferred Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule ~~III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date~~ IV. For ----------- purposes of the ~~Closing and for transfers~~ foregoing opinion, counsel may rely on the records in ~~accordance with the Existing Shareholders Agreement)~~its possession. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the ~~Charter,~~ Charter and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~IV, to the knowledge of such counsel, ----------- immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company ~~will~~ shall be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ IV or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of ----------- such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Preferred Shares and the Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Shares and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Preferred Shares have been validly issued, ~~and will be~~ are fully paid and nonassessable ~~with no personal liability attaching~~ and, to the ~~ownership thereof (other than~~ knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company except as set forth in the Registration Rights Agreement; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law or (ii) attributable to acts of the Purchaser)~~ Preferred Shares and, when so issued, will be validly issued, fully paid and nonassessable and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person, other than the rights set forth in the Thomson Agreement. (Fvi) ~~Except as described in Schedule I, to~~ To the knowledge of such ~~counsel,~~ counsel there is no (aA) action, ~~suit, claim,~~ suit proceeding or investigation pending or threatened ~~by or~~ against the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the ~~qualification~~ clarification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary under current law for the valid execution, delivery and performance by the Company of this Agreement, the ~~Transaction Documents~~Registration Rights Agreement and the Stockholders Agreement, the issuance, sale and delivery of the ~~Convertible Notes or~~ Preferred Shares or, upon conversion thereof, the issuance and delivery of the ~~Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Conversion Shares, other than filings pursuant to ~~New York~~ state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Hviii) ~~To such counsel's knowledge, all~~ All of the ~~Convertible Notes to be issued to the Purchaser will be~~ outstanding shares of capital stock have been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Series D Convertible Preferred Stock Purchase Agreement (CCBN Com)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from Xxxxxxx, ~~Xxxxxxxx~~ Xxxxx & ~~Kotel, a Professional Corporation~~Xxxxx, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its respective jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company has no subsidiaries. The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each ~~other~~ jurisdiction in ~~which, to~~ which the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries nature of the ~~Company and each~~ business transacted by it or the character of the properties owned or leased by it requires such ~~subsidiaries is wholly-owned, directly~~ licensing or ~~indirectly, by the Company~~qualification. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Registration Rights Agreement and the Stock Restriction Agreement, to issue, sell and deliver the Notes and the Warrants, to issue and deliver the Common Conversion Shares upon exercise of the Warrants and conversion of the Notes and, upon the approval of the Charter Amendment at the Stockholders' Meeting and the filing of the Charter Amendment with the Secretary of the State of New York, to issue and deliver the Preferred Conversion Shares upon conversion of the Preferred Shares and to issue and deliver the ~~Note~~ Preferred Shares ~~in accordance with the terms~~ upon conversion of the ~~Convertible Notes and the Charter~~Notes. (Bii) ~~The Transaction Documents~~ This Agreement, the Notes, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief, and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Notes, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible~~ Notes and the Warrants, the issuance and delivery of the Common Conversion Shares upon exercise of the Warrants and conversion of the Notes, and, upon approval of the Charter Amendment at the Stockholders' Meeting and the filing of the Charter Amendment with the Secretary of State of the State of New York, the issuance and delivery of the Preferred Conversion Shares upon conversion of the Preferred Shares and the issuance and delivery of the Preferred Shares upon conversion of the Notes, will not violate any provision of ~~federal or New York~~ law, the Charter, the Charter as proposed to be amended by the Charter Amendment, or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known to such counsel~~ or any ~~material~~ indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by the Company,~~ to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or of assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Purchasers of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of to the Company consists of ~~(a)~~ 5,000,000 shares of ~~Preferred~~ Common Stock, 1,000 shares of ~~which 170,000 shares have been designated Series~~ Class A ~~Preferred Stock, 1,620,700 have been designated Series B Preferred~~ Stock and ~~1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000~~ 1,000 shares of ~~Common~~ Class B Stock. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 2,788,829 shares of Common Stock ~~(exclusive of Additional Option Shares), 99,804.2276~~ no shares of ~~Series~~ Class A ~~Preferred Stock, 1,077,026 shares of Series B Preferred~~ Stock and no shares of ~~Series C Preferred~~ Class B Stock will ~~have been~~ be validly issued~~. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant~~ , fully paid and nonassessable with no personal liability attaching to the ~~1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted~~ ownership thereof except for ~~the issuance of options after the date of this Agreement) are subject to outstanding unexercised options~~any liability that may be imposed by applicable state statutes upon stockholders for wages or similar claims. ~~To such counsel's knowledge, immediately~~ Immediately prior to the Closing, the ~~shareholders~~ stockholders of record holding more than five (5%) percent of the outstanding Common Stock and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)IV. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of ~~each class or series of authorized capital stock of~~ the ~~Company~~ Common Stock, the Class A Stock and the Class B Stock are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally~~ generally). Upon the filing of the Charter Amendment with the Secretary of State of the State of New York, the designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of the Preferred Stock will be as set forth in the Charter Amendment, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions will be valid, binding, enforceable and in accordance with all applicable laws (subject, as to enforcement, to the discretion of courts in awarding equitable relief and to ~~general principles~~ applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of ~~equity, regardless of whether enforcement is sought in equity or at law~~creditors generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~IV, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ IV or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Notes, the Warrants, and the Common Conversion Shares have been and, upon the approval of the Charter Amendment at the Stockholders' Meeting and the filing of the Charter Amendment with the Secretary of State of the State of New York, the Preferred Conversion Shares and the Preferred Shares will be, duly authorized, The issuance, sale and delivery of the Notes and the Warrants and the issuance and delivery of Common Conversion Shares upon exercise of the ~~Note Shares~~ Warrants and conversion of the Notes, have been and, upon the approval of the Charter Amendment at the Stockholders' Meeting and the filing of the Charter Amendment with the Secretary of State of the State of New York, the issuance of the Preferred Shares upon conversion of the Notes and the issuance of the Preferred Conversion Shares upon conversion of the Preferred Shares will be, duly authorized by all required corporate ~~action~~ action; the Notes and the Warrants have been validly issued with no personal liability attaching to the ownership thereof and, to the knowledge of such counsel, are free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through the Company except as set forth in the Registration Rights Agreement; and the Common Conversion Shares have been and, upon the approval of the Charter Amendment at the Stockholders' Meeting and the filing of the Charter Amendment with the Secretary of State of the State of New York, the Preferred Conversion Shares and the Preferred Shares will be, duly reserved for issuance upon exercise of the Warrants or conversion of the Preferred Shares or the Notes, as the case may be and, when ~~delivered against the purchase price therefore~~so issued, ~~said shares~~ will ~~have been~~ be validly issued, ~~and will be~~ fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than such liability, if any, as~~ except for any liability that may be ~~(i)~~ imposed by ~~Section 630 of the New York Business Corporation law~~ applicable state statutes upon stockholders for wages or ~~(ii) attributable to acts of the Purchaser)~~ similar claims and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Notes or the Warrants nor the issuance or deliver of the Conversion Shares, the Preferred Conversion Shares or the Preferred Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter Amendment or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Fvi) Except as described in Schedule III, to the knowledge of such ~~counsel,~~ counsel there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by ~~any~~ and Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) To the knowledge of such counsel, no third party has claimed that any person employed by or affiliated with the Company has violated or may be violating any of the terms or conditions of his employment, non-competition or non-disclosure agreement with such third party, or disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees. (viii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of this Agreement, the ~~Transaction Documents~~Notes, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement, the issuance, sale and delivery of the ~~Convertible~~ Notes or the Warrants or, upon conversion or exercise thereof, the issuance and delivery of the ~~Note~~ Common Conversion Shares, the Preferred Conversion Shares ~~under~~ or the ~~circumstances contemplated by~~ Preferred Shares, other than (i) in the ~~Transaction Documents~~ case of the Preferred Conversion Shares and the Preferred Shares, the filing of the Charter ~~other than~~ Amendment with the Secretary of State of New York and (ii) filings pursuant to ~~New York~~ state securities laws (all of which ~~filings, other than those which are permitted to be made after the Closing,~~ filings have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Hix) ~~To such counsel's knowledge, all~~ Assuming the accuracy of the ~~Convertible~~ representations and warranties of the Purchasers set forth in Article III, the issuance, sale and delivery of the Notes and the Warrants to be ~~issued~~ sold to the ~~Purchaser~~ Purchasers on the Closing Date, under the circumstances contemplated by this Agreement, are exempt from the registration requirements of the Securities Act, and the issuance and delivery of the Common Conversion Shares, the Preferred Conversion Shares and the Preferred Shares upon exercise of the Warrants and conversion of the Preferred Shares and the Notes, as the case may be, as contemplated hereby, will be exempt from such requirements. (x) All of the outstanding shares of Common Stock have been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Convertible Demand Note and Warrant Purchase Agreement (Medical Sterilization Inc)

Opinion of Company's Counsel. ~~The Purchaser~~ Investor shall have received from ~~Xxxxxxx~~Xxxxxx, ~~Xxxxxxxx~~ Xxxxx & ~~Kotel~~Re, ~~a Professional Corporation~~P.C., counsel for ~~the Company~~AVI, an opinion dated ~~the date~~ as of ~~the Closing,~~ such Closing Date in form and scope satisfactory to ~~the Purchaser~~ Investor and ~~its~~ their counsel, ~~to the effect that~~substantially as follows: (Ai) ~~The Company~~ AVI and each AVI Subsidiary is a corporation duly incorporated, validly existing ~~and subsisting~~ and, to the extent applicable under the laws of such jurisdiction, is in good standing under the laws of its respective jurisdiction of ~~incorporation~~incorporation and, ~~except that such counsel shall not be required to express any opinion with respect~~ to the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel~~extent applicable, ~~the Company~~ is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each ~~other~~ jurisdiction in ~~which, to~~ which the ~~knowledge~~ nature of the business transacted by it or the character of the properties owned or leased by it requires such ~~counsel, it is required~~ licensing or qualification and where the failure to be so ~~qualified~~licensed or qualified would have Material Adverse Effect. AVI and each AVI Subsidiary has, ~~except that such counsel shall not be required to express any opinion with respect~~ pursuant to the ~~absence of qualification in Illinois~~applicable laws, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the corporate power and authority to own and hold its properties and to carry on its business as ~~currently~~ now conducted and as proposed to be conducted. ~~The Company~~ AVI has the corporate power and authority to execute, deliver and perform this Agreement and the Transaction Documents and to ~~issue~~ issue, sell and deliver the ~~Note Shares~~ Purchased Securities. (ii) The authorized and outstanding capital stock of AVI consists of that described in Section 3.4 of this Agreement. All such issued and outstanding shares, options and warrants were duly authorized and validly issued, fully paid and nonassessable and free and clear of any Liens, except as to restrictions on transfer imposed by AVI to comply with federal and applicable state securities laws. To such counsel's knowledge after investigation, and except as disclosed to Investor, after reasonable investigation, there are no other options, warrants, conversion privileges, preemptive rights, rights of first refusal or other rights (or agreements with respect to the issuance thereof) presently in existence to purchase or acquire any of the authorized but unissued capital stock of AVI. (iii) All necessary corporate action on the part of AVI and of its officers, directors and shareholders has been taken for the valid execution and delivery of this Agreement, the Transaction Documents, and the performance of the obligations of AVI hereunder and thereunder. The Board of the Company has approved the transactions contemplated by this Agreement and the Transaction Documents such that the provisions of Section 60.835 of the Oregon Business Corporations Act will not apply to this Agreement, the Transaction Documents or any of the transactions contemplated hereby or thereby. This Agreement and the Transaction Documents have been validly executed and delivered and are legal, valid and binding obligations of AVI, enforceable against AVI in accordance with their respective terms. The execution and delivery of this Agreement and the Transaction Documents and the performance by AVI of its obligation hereunder and thereunder do not conflict with or result in the violation of AVI's Articles of Incorporation or Bylaws; or any material written agreement, instrument, order, writ, judgment or decree known to such counsel to which AVI is a party or by which it is bound; or to such counsel's knowledge, violate any existing law or regulation. (iv) The Purchased Securities have been duly authorized by all necessary corporate action on the part of AVI and, upon delivery by AVI in accordance with the terms of ~~the Convertible Notes~~ this Agreement, will be duly and ~~the Charter~~validly issued, fully paid and nonassessable and free and clear of any Liens, except that such Purchased Securities will be subject to restrictions on transfer imposed by AVI to comply with federal and applicable state securities laws as described in Article 4 hereof. (Bv) ~~The~~ To such counsel's knowledge after investigation, except as disclosed in the Disclosure Schedule, there are no actions, proceedings or investigations which are pending or threatened against or affecting AVI, that, either in any case or in the aggregate, might result in a Material Adverse Effect. (vi) All consents, approvals, orders, authorizations or registrations, qualifications, designations, declarations or filings of or with any federal or state governmental authority on the part of AVI required in connection with the consummation of the transactions contemplated by this Agreement and the Transaction Documents have been ~~duly authorized~~made, ~~executed and delivered by the Company and constitute the valid and binding obligations of the Company~~obtained or effected (provided, ~~enforceable in accordance with their respective terms (subject to applicable bankruptcy~~however, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (C) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default filings under any such indenture, agreement or other instrument, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws ~~and~~ may ~~disclaim any opinion as~~ be made promptly after the Closing to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (D) The authorized capital stock of the Company consists of (a) 5,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to extent such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings ~~pursuant to New York securities laws (all of which filings, other than those which~~ are permitted to be made after the ~~Closing, have been made by~~ sale of the ~~Company~~Purchased Securities). ~~In rendering~~ Based in part on the ~~foregoing opinion with respect to performance by the Company~~ representations of ~~its obligations under the Registration Rights~~ Investor in Article 4 of this Agreement, ~~such counsel may assume compliance~~ the offer, sale and issuance by AVI of the ~~Company at such time~~ Purchased Securities, all in conformity with the terms of this Agreement, do not require registration ~~requirements~~ under Section 5 of the Securities Act ~~and~~ of 1933, as amended. In rendering such opinions, said counsel may rely on such certificates of public officials and, with ~~applicable state securities laws and may disclaim any opinion~~ respect to factual matters, of officers of AVI as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel ~~has knowledge~~ deems necessary or ~~any security of the Company of which~~ appropriate, and such ~~counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified~~ opinions may be limited in scope and be subject to such ~~counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary~~ qualifications as is ~~a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations~~ customary under the ~~Transaction Documents~~circumstances and as may be reasonably acceptable to counsel to Investor.

Appears in 1 contract

Samples: Investment Agreement (Avi Biopharma Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation~~Hale xxx Dorr XXX, counsel for the Company, an opinion dated ~~the date~~ as of the ~~Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of the State of Delaware, its jurisdiction of incorporation~~, except that such counsel shall not be required to express any opinion with respect to~~ . To the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review~~ knowledge of ~~good standing certificates by~~ such counsel, the Company has no subsidiaries. The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyVirginia. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Third Amended and Restated Registration Rights Agreement and the Amended and Restated Stock Restriction Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The Transaction Documents~~ This Agreement, the Third Amended and Restated Registration Rights Agreement and the Amended and Restated Stock Restriction Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Third Amended and Restated Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Third Amended and Restated Registration Rights Agreement and the Amended and Restated Stock Restriction Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York law~~law applicable to the Company, the Charter or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known~~ specifically applicable to ~~such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company or its property or any agreement of ~~its properties or assets is bound~~the Company listed on Schedule II hereto, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under, accelerate or terminate or require the consent of any party under any ~~such~~ material indenture, agreement or other ~~instrument~~instrument as listed on Schedule II hereto, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may ~~assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and~~assume, with respect to performance by the Company of its obligations under the Third Amended and Restated Registration Rights Agreement, ~~may assume~~ compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Third Amended and Restated Registration Rights Agreement. (Div) The authorized capital stock of the Company as of the date hereof consists of (ai) ~~5,000,000~~ 1,562,500 shares of Class A Convertible Preferred Stock, ~~of which 170,000 shares have been designated Series~~ par value $.001 per share (the "Class A Preferred Stock"), ~~1,620,700 have been designated Series~~ (ii) 2,151,420 shares of Class B Convertible Preferred Stock, par value $.001 per share (the "Class B Preferred ~~Stock and 1,650,000 have been designated Series~~ Stock"), (iii) 3,188,889 shares of Class C Convertible Preferred Stock, par value $.001 per share (the "Class C Preferred ~~Stock~~ Stock"), (iv) 2,045,785 shares of Class D Convertible Preferred Stock, par value $.001 per share (the "Class D Convertible Preferred Stock"), (v) 1,024,351 shares of Class E Convertible Preferred Stock, par value $.001 per share (the "Class E Preferred Stock"), (vi) 2,018,350 shares of Class F Convertible Preferred Stock, par value $.001 per share (the "Class F Preferred Stock") and (bvii) ~~150,000,000~~ 21,000,000 shares of Common Stock. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 4,855,333 shares of Common ~~Stock (exclusive of Additional Option Shares)~~Stock, ~~99,804.2276~~ 1,507,500 shares of ~~Series~~ Class A Preferred Stock, ~~1,077,026~~ 2,151,420 shares of ~~Series~~ Class B Preferred Stock, 3,188,889 shares of Class C Preferred Stock, 2,045,785 shares of Class D Preferred Stock and 1,024,351 shares of Class E Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof and no shares of ~~Series C~~ Class F Preferred Stock will have been issued. The ~~Company has reserved 21,303,000 shares of Common Stock for issuance~~ Class F Preferred Stock, when issued to the Purchasers pursuant to the ~~1998 Plan~~ terms of ~~which, to such counsel's knowledge, 15,014,883 shares (adjusted~~ this Agreement and for the ~~issuance of options after~~ consideration set forth herein, will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ~~date of this Agreement) are subject to outstanding unexercised options~~ownership thereof. ~~To such counsel's knowledge, immediately~~ Immediately prior to the Closing, based on a review by such counsel of the ~~shareholders of~~ stock record and ~~holders~~ minute books of ~~record~~ the Company, the amount of ~~subscriptions,~~ Common Stock issuable pursuant to warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule ~~III (subject to adjustment for the issuance~~ II and ~~exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)~~Schedule III. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable against the Company and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III~~ II and ~~except for the Convertible Notes and employee stock options issued after the date hereof~~Schedule III, to the knowledge of such counsel, immediately prior to the Closing no Common Stock has been issued pursuant to any subscription, warrant, option, convertible security, or other right (contingent or ~~other~~otherwise) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ II or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such ~~counsel~~ counsel, the Company has no obligation (contingent or ~~other~~otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Preferred Shares and the Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Shares and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Preferred Shares have been validly issued, ~~and will be~~ are fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than~~ and, to the best knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through the Company except as set forth in the Third Amended and Restated Registration Rights Agreement and the Amended and Restated Stock Restriction Agreement, and the Conversion Shares have been duly reserved for issuance upon conversion of the Preferred Shares and, when issued in accordance with the terms of this Agreement and the Company's Charter, as ~~may~~ amended, will be ~~(i) imposed by Section 630 of~~ validly issued, fully paid and nonassessable with no personal liability attaching to the ~~New York Business Corporation law or (ii) attributable to acts of the Purchaser)~~ ownership thereof and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Third Amended and Restated Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person, except as set forth on Schedule II. (Fvi) Except as described in Schedule III, to the knowledge of such ~~counsel,~~ counsel there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) To the knowledge of such counsel, no third party has claimed that any person employed by or affiliated with the Company has violated or may be violating any of the terms or conditions of his employment, non-competition or non-disclosure agreement with such third party, or disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees. (viii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, ~~no registration or filing with,~~ the offer and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company sale of the ~~Transaction Documents,~~ Series F Preferred Stock pursuant to the ~~issuance, sale and delivery~~ terms of ~~the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents~~ this Agreement and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Third Amended and Restated Registration Rights ~~Agreement, such counsel may assume compliance by the Company at such time with~~ Agreement are exempt from the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements Section 5 of the Securities Act ~~and all applicable New York~~ of 1933, as amended, and, under such securities ~~laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable~~ laws ~~and agreements~~as they presently exist, ~~no approval or consent~~ the issuance of ~~or from any holder of indebtedness of which such counsel has knowledge or any security~~ Common Stock upon conversion of the ~~Company of which~~ Series F Preferred Stock will also be exempt from such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance registration and ~~delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents~~qualification requirements.

Appears in 1 contract

Samples: Class F Convertible Preferred Stock Purchase Agreement (Careerbuilder Inc)

Opinion of Company's Counsel. ~~The Purchaser~~ Investor shall have received from ~~Xxxxxxx~~Xxxxxx, ~~Xxxxxxxx~~ Xxxxx & ~~Kotel~~Re, ~~a Professional Corporation~~P.C., counsel for ~~the Company~~AVI, an opinion dated ~~the date~~ as of ~~the Closing,~~ such Closing Date in form and scope satisfactory to ~~the Purchaser~~ Investor and ~~its~~ their counsel, ~~to the effect that~~substantially as follows: (Ai) ~~The Company~~ AVI and each AVI Subsidiary is a corporation duly incorporated, validly existing ~~and subsisting~~ and, to the extent applicable under the laws of such jurisdiction, is in good standing under the laws of its respective jurisdiction of ~~incorporation~~incorporation and, ~~except that such counsel shall not be required to express any opinion with respect~~ to the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel~~extent applicable, ~~the Company~~ is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each ~~other~~ jurisdiction in ~~which, to~~ which the ~~knowledge~~ nature of the business transacted by it or the character of the properties owned or leased by it requires such ~~counsel, it is required~~ licensing or qualification and where the failure to be so ~~qualified~~licensed or qualified would have Material Adverse Effect. AVI and each AVI Subsidiary has, ~~except that such counsel shall not be required to express any opinion with respect~~ pursuant to the ~~absence of qualification in Illinois~~applicable laws, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the corporate power and authority to own and hold its properties and to carry on its business as ~~currently~~ now conducted and as proposed to be conducted. ~~The Company~~ AVI has the corporate power and authority to execute, deliver and perform this Agreement and the Transaction Documents and to ~~issue~~ issue, sell and deliver the ~~Note Shares~~ Purchased Securities. (ii) The authorized and outstanding capital stock of AVI consists of that described in Section 3.4 of this Agreement. All such issued and outstanding shares, options and warrants were duly authorized and validly issued, fully paid and nonassessable and free and clear of any Liens, except as to restrictions on transfer imposed by AVI to comply with federal and applicable state securities laws. To such counsel’s knowledge after investigation, and except as disclosed to Investor, after reasonable investigation, there are no other options, warrants, conversion privileges, preemptive rights, rights of first refusal or other rights (or agreements with respect to the issuance thereof) presently in existence to purchase or acquire any of the authorized but unissued capital stock of AVI. (iii) All necessary corporate action on the part of AVI and of its officers, directors and shareholders has been taken for the valid execution and delivery of this Agreement, the Transaction Documents, and the performance of the obligations of AVI hereunder and thereunder. The Board of the Company has approved the transactions contemplated by this Agreement and the Transaction Documents such that the provisions of Section 60.835 of the Oregon Business Corporations Act will not apply to this Agreement, the Transaction Documents or any of the transactions contemplated hereby or thereby. This Agreement and the Transaction Documents have been validly executed and delivered and are legal, valid and binding obligations of AVI, enforceable against AVI in accordance with their respective terms. The execution and delivery of this Agreement and the Transaction Documents and the performance by AVI of its obligation hereunder and thereunder do not conflict with or result in the violation of AVI’s Articles of Incorporation or Bylaws; or any material written agreement, instrument, order, writ, judgment or decree known to such counsel to which AVI is a party or by which it is bound; or to such counsel’s knowledge, violate any existing law or regulation. (iv) The Purchased Securities have been duly authorized by all necessary corporate action on the part of AVI and, upon delivery by AVI in accordance with the terms of ~~the Convertible Notes~~ this Agreement, will be duly and ~~the Charter~~validly issued, fully paid and nonassessable and free and clear of any Liens, except that such Purchased Securities will be subject to restrictions on transfer imposed by AVI to comply with federal and applicable state securities laws as described in Article 4 hereof. (Bv) ~~The~~ To such counsel’s knowledge after investigation, except as disclosed in the Disclosure Schedule, there are no actions, proceedings or investigations which are pending or threatened against or affecting AVI, that, either in any case or in the aggregate, might result in a Material Adverse Effect. (vi) All consents, approvals, orders, authorizations or registrations, qualifications, designations, declarations or filings of or with any federal or state governmental authority on the part of AVI required in connection with the consummation of the transactions contemplated by this Agreement and the Transaction Documents have been ~~duly authorized~~made, ~~executed and delivered by the Company and constitute the valid and binding obligations of the Company~~obtained or effected (provided, ~~enforceable in accordance with their respective terms (subject to applicable bankruptcy~~however, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (C) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default filings under any such indenture, agreement or other instrument, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws ~~and~~ may ~~disclaim any opinion as~~ be made promptly after the Closing to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (D) The authorized capital stock of the Company consists of (a) 5,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to extent such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings ~~pursuant to New York securities laws (all of which filings, other than those which~~ are permitted to be made after the ~~Closing, have been made by~~ sale of the ~~Company~~Purchased Securities). ~~In rendering~~ Based in part on the ~~foregoing opinion with respect to performance by the Company~~ representations of ~~its obligations under the Registration Rights~~ Investor in Article 4 of this Agreement, ~~such counsel may assume compliance~~ the offer, sale and issuance by AVI of the ~~Company at such time~~ Purchased Securities, all in conformity with the terms of this Agreement, do not require registration ~~requirements~~ under Section 5 of the Securities Act ~~and~~ of 1933, as amended. In rendering such opinions, said counsel may rely on such certificates of public officials and, with ~~applicable state securities laws and may disclaim any opinion~~ respect to factual matters, of officers of AVI as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel ~~has knowledge~~ deems necessary or ~~any security of the Company of which~~ appropriate, and such ~~counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified~~ opinions may be limited in scope and be subject to such ~~counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary~~ qualifications as is ~~a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations~~ customary under the ~~Transaction Documents~~circumstances and as may be reasonably acceptable to counsel to Investor.

Appears in 1 contract

Samples: Investment Agreement (Avi Biopharma Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from Xxxxxxx, ~~Xxxxxxxx~~ Xxxxx & ~~Kotel, a Professional Corporation~~Xxxxx, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its respective jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company has no subsidiaries. The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each ~~other~~ jurisdiction in ~~which, to~~ which the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries nature of the ~~Company and each~~ business transacted by it or the character of the properties owned or leased by it requires such ~~subsidiaries is wholly-owned, directly~~ licensing or ~~indirectly, by the Company~~qualification. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Registration Rights Agreement and the Stock Restriction Agreement, to issue, sell and deliver the Preferred Stock and the Warrants, to issue and deliver the Common Conversion Shares upon exercise of the Warrants and to issue and deliver the ~~Note~~ Preferred Conversion Shares ~~in accordance with the terms~~ upon conversion of the ~~Convertible Notes and the Charter~~Preferred Stock. (Bii) ~~The Transaction Documents~~ This Agreement, the Preferred Stock, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Preferred Stock, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Stock and the Warrants, the issuance and delivery of the Common Conversion Shares upon exercise of the Warrants and the issuance and delivery of the Preferred Conversion Shares upon conversion of the Preferred Stock will not violate any provision of ~~federal or New York~~ law, the ~~Charter~~ Certificate of Incorporation or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known to such counsel~~ or any ~~material~~ indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by the Company,~~ to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Purchasers of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists of ~~(a) 5,000,000~~ 10,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 2,788,829 shares of Common Stock ~~(exclusive of Additional Option Shares), 99,804.2276~~ and 285,715 shares of Series A ~~Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C~~ Convertible Preferred Stock will ~~have been~~ be validly issued~~. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant~~ , fully paid and nonassessable with no personal liability attaching to the ~~1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted~~ ownership thereof except for ~~the issuance of options after the date of this Agreement) are subject to outstanding unexercised options~~any liability that may be imposed by applicable state statutes upon shareholders for wages or similar claims. ~~To such counsel's knowledge, immediately~~ Immediately prior to the Closing, the shareholders of record holding more than five (5%) percent of the outstanding Common Stock and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)IV. The designations, ~~powers,~~ powers preferences, rights, qualifications, limitations and restrictions in respect of ~~each class or series of authorized capital stock of~~ the ~~Company~~ Common Stock and the Preferred Stock are as set forth in the ~~Charter~~Restated Certificate of Incorporation and Exhibit D, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of the courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~IV, to the knowledge of such counsel, immediately prior to the ~~Closing~~ Closing, no subscription, warrant, option, convertible ~~security,~~ security or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ II or Schedule IV or as provided for in ~~this Agreement~~ the Restated Certificate of Incorporation and ~~in the Charter~~Exhibit D, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Preferred Stock, the Warrants, the Common Conversion Shares and the Preferred Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Stock and the Warrants and the issuance and delivery of Common Conversion Shares upon exercise of the Warrants and the issuance and delivery of the ~~Note~~ Preferred Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action~~ action; the Preferred Stock and the Warrants have been validly issued with no personal liability attaching to the ownership thereof and, to the knowledge of such counsel, are free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through the Company except as set forth in the Registration Rights Agreement; and the Common Conversion Shares and the Preferred Conversion Shares have been duly reserved for issuance upon exercise of the Warrants or conversion of the Preferred Stock, as the case may be and, when ~~delivered against the purchase price therefore~~so issued, ~~said shares~~ will ~~have been~~ be validly issued, ~~and will be~~ fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than such liability, if any, as~~ except for any liability that may be ~~(i)~~ imposed by ~~Section 630 of the New York Business Corporation law~~ applicable state statutes upon shareholders for wages or ~~(ii) attributable to acts of the Purchaser)~~ similar claims and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Stock or the Warrants nor the issuance or delivery of the Common Conversion Shares or the Preferred Conversion Shares is subject to any preemptive right of shareholders of the Company arising under law or the ~~Charter~~ Restated Certificate of Incorporation or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or ~~other~~ the right in favor of any person. (Fvi) Except as described in Schedule III, to the knowledge of such ~~counsel,~~ counsel there is no not (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, ~~commission~~commission , board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under the collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) Except as described in Schedule II to the knowledge of such counsel, no third party has claimed that any person employed or affiliated with the Company has violated or may be violating any of the terms or conditions of his employment, non-competition or non-disclosure agreement with such third party, or disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees. (viii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of this Agreement, the ~~Transaction Documents~~Preferred stock, the Warrants, the Registration Rights Agreement and the Stock Restriction Agreement, the issuance, sale and delivery of the ~~Convertible Notes~~ Preferred stock or the Warrants or, upon conversion or exercise thereof, the issuance and delivery of the ~~Note~~ Common Conversion Shares ~~under the circumstances contemplated by the Transaction Documents~~ and the ~~Charter~~ Preferred Conversion Shares, other than filings pursuant to ~~New York~~ state securities laws (all of which ~~filings, other than those which are permitted to be made after the Closing,~~ filings have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities ~~Act~~ act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Hix) ~~To such counsel's knowledge, all~~ Assuming the accuracy of the ~~Convertible Notes~~ representations and warranties of the Purchasers set forth in Article III, the issuance, sale and delivery of the Preferred Stock and the Warrants to be ~~issued~~ sold to the ~~Purchaser~~ Purchasers on the Closing Date, under the circumstances contemplated by this Agreement, are exempt from the registration requirements of the Securities Act, and the issuance and delivery of the Common Conversion Shares and the Preferred Conversion Shares upon exercise of the Warrants and conversion of the Preferred Stock, as the case may be, as contemplated hereby, will be exempt from such requirements. (x) All of the outstanding shares of Common Stock have been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Series a Convertible Preferred Stock and Warrant Purchase Agreement (Medical Sterilization Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Investors shall have received from ~~Xxxxxxx~~LeBoeuf, ~~Xxxxxxxx~~ Lamb, Greene & ~~Kotel~~MacRae, ~~a Professional Corporation, counsel for the~~ cxxxxxx fox xxx Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Investors and ~~its counsel~~counsel to the Investors, subject to customary qualifications, to the effect that: (Ai) The Company is a corporation ~~duly incorporated,~~ validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyConnecticut. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform each of the Transaction Documents and to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Warrant Shares. (Bii) ~~The~~ All of the Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the ~~issuance, sale~~ issuance and delivery of the ~~Convertible Notes~~Warrant Shares, will not violate any provision of ~~federal or New York~~ law, the ~~Charter~~ Certificate of Incorporation or By-~~laws~~ laws, as amended, of the Company, or, to the knowledge of such counsel, any material provision of any order of any court or other agency of government ~~known to such counsel~~ or any material indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by the Company,~~ to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may rely on a certificate as to certain facts from an officer of the Company, may assume full disclosure to the ~~Purchaser~~ Investors of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists of ~~(a) 5,000,000~~ 20,000,000 shares of Common Stock, without par value and 500,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stockwithout par value. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of ~~Series C~~ Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record be issued and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of ~~each class or series of~~ the authorized capital stock of the Company are as set forth in the ~~Charter~~Certificate of Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party theretogenerally). (Ev) The ~~issuance and delivery~~ shares of Common stock issuable upon exercise of the ~~Note Shares~~ Warrants have been duly authorized and reserved by all required corporate action ~~and~~and when issued and paid for in accordance with the terms of the Warrants, ~~when delivered against the purchase price therefore, said shares~~ will ~~have been~~ be validly issued, ~~and will be~~ fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liabilitythereof. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note Shares~~ shares of Common stock issuable upon exercise of the Warrants is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the ~~Charter~~ Certificate of Incorporation or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Fvi) Except as described in Schedule I, LeBoeuf, Lamb, Greene & MacRae, L.X.X. has xxx xeen engaged by the Company to ~~the knowledge of such counsel, there is no~~ give substantive legal advice with respect to any (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gviii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Investors set forth in Article 3III, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction ~~Documents, the issuance, sale and delivery of the Convertible Notes~~ Documents or the issuance and delivery of the ~~Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Warrant Shares, other than filings pursuant to ~~New York~~ Regulation D promulgated by the Securities and Exchange Commission and state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities ~~laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement~~laws. (Hix) To the knowledge of such counsel~~'s knowledge~~, ~~all~~ none of the ~~Convertible Notes to be~~ outstanding shares of Common Stock is the subject of any recission claim alleging that such shares have been issued to in violation with the ~~Purchaser~~ registration requirements of the Act or any applicable state securities laws. The shares of Preferred Stock, when issued and paid for in accordance with the terms of this Agreement and the shares of Common Stock issuable upon exercise of the Warrant, when issued and paid for in accordance with the terms of the Warrants, will be issued in compliance with the registration requirements of the ~~Securities~~ Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Senior Subordinated Convertible Promissory Note and Warrant Purchase Agreement (Wand Partners Sc Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Investors shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation,~~ counsel for the Company, an opinion dated the date of the Closing or the Second Closing, as the case may be, in form and scope satisfactory to the ~~Purchaser~~ Investors and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company New Mexico and ~~each of such subsidiaries is wholly-owned, directly or indirectly, by the Company~~Tennessee. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform all of the Transaction ~~Documents~~ Documents, to issue, sell and deliver the Debentures and Warrants and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The~~ All of the Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations ~~thereunder and~~ thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Debentures and the Warrants and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York~~ law, the Charter or Byby-~~laws~~ laws, as amended, of the Company, any ~~order of any court or other agency of government known to such counsel or any material~~ indenture, agreement or other ~~instrument, identified~~ instrument listed as an exhibit to ~~such~~ the opinion of Company's counsel ~~in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound,~~ or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Investors of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists of ~~(a) 5,000,000~~ 20,000,000 shares of ~~Preferred Stock~~preferred stock, ~~of which 170,000 shares have been designated Series A Preferred Stock~~no par value, ~~1,620,700 have been designated Series B Preferred Stock~~ and ~~1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000~~ 100,000,000 shares of ~~Common Stock~~common stock, par value $.001. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 18,857,675 shares of Common Stock will be validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof and no (~~exclusive of Additional Option Shares), 99,804.2276~~ -0-) shares of ~~Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock~~ preferred stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately Immediately prior to the Closing, the ~~shareholders~~ stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement6(d). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~6(d), to the knowledge of such counsel, (1) immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and (2) there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ 6(d) or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such ~~counsel~~ counsel, the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Securities have been duly authorized. The issuance, sale and delivery of the Debentures and Warrants and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Debentures or the exercise of the Warrants have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Debentures and Warrants have been validly issued, ~~and will be~~ are fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than~~ and, to the knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law~~ Debentures or ~~(ii) attributable to acts~~ the exercise of the ~~Purchaser)~~ Warrants and, when so issued, will be validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Debentures and Warrants nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or Byby-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Fvi) Except as described in Schedule I6(g), to the knowledge of such counsel, there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the Company or any of its subsidiaries, at law or in equity, or before or by any ~~Federal~~federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any ~~Federal~~federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Investors set forth ~~in Article 3~~herein, no registration or filing with, and no consent or approval of, or other action by any ~~Federal~~federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the ~~Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Securities, other than filings pursuant to ~~New York~~ state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Hviii) ~~To such counsel's knowledge, all~~ All of the ~~Convertible Notes to be issued to the Purchaser will be~~ Company's outstanding capital stock has been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (Iix) ~~Other than approvals or consents which have been obtained in accordance with all applicable laws~~ The issuance and ~~agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security~~ sale of the ~~Company~~ Debentures and Warrants do not, and the shares of ~~which such counsel has knowledge is required by law~~ the Conversion Shares will not, require registration under the Securities Act or ~~by the Certificate of Incorporation or Bylaws~~qualification under any state securities laws. (x) Except for taxes and assessments that are being contested in good faith, ~~or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company ~~or any subsidiary is a party or~~ has paid all taxes. (xi) Except as disclosed on Schedule 6(l), the Company has filed all reports and other documents required to be filed by ~~which its property is bound~~ it with the Securities and Exchange Commission pursuant to the reporting requirements of the 1934 Act. (xii) The security interest granted to Investors in connection ~~with the~~ xxxx xxx issuance ~~and delivery~~ of the ~~Convertible Notes or~~ Debentures will be a first priority security interest in and lien on the ~~Note Shares and~~ Collateral (as defined in the ~~performance of the Company's obligations under the Transaction Documents~~Debentures).

Appears in 1 contract

Samples: 12% Senior Secured Convertible Debenture and Warrant Purchase Agreement (Americana Publishing Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Investors shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation,~~ counsel for the Company, an opinion dated the date of the Closing or the Second Closing, as the case may be, in form and scope satisfactory to the ~~Purchaser~~ Investors and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company New Mexico and ~~each of such subsidiaries is wholly-owned, directly or indirectly, by the Company~~Tennessee. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform all of the Transaction ~~Documents~~ Documents, to issue, sell and deliver the Debentures and Warrants and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The~~ All of the Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations ~~thereunder and~~ thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Debentures and the Warrants and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York~~ law, the Charter or Byby-~~laws~~ laws, as amended, of the Company, any ~~order of any court or other agency of government known to such counsel or any material~~ indenture, agreement or other ~~instrument, identified~~ instrument listed as an exhibit to ~~such~~ the opinion of Company's counsel ~~in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound,~~ or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Investors of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists of ~~(a) 5,000,000~~ 20,000,000 shares of ~~Preferred Stock~~preferred stock, ~~of which 170,000 shares have been designated Series A Preferred Stock~~no par value, ~~1,620,700 have been designated Series B Preferred Stock~~ and ~~1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000~~ 100,000,000 shares of ~~Common Stock~~common stock, par value $.001. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 18,857,675 shares of Common Stock will be validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof and no (~~exclusive of Additional Option Shares), 99,804.2276~~ -0-) shares of ~~Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock~~ preferred stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately Immediately prior to the Closing, the ~~shareholders~~ stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement6(d). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~6(d), to the knowledge of such counsel, (1) immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and (2) there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ 6(d) or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such ~~counsel~~ counsel, the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Securities have been duly authorized. The issuance, sale and delivery of the Debentures and Warrants and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Debentures or the exercise of the Warrants have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Debentures and Warrants have been validly issued, ~~and will be~~ are fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than~~ and, to the knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law~~ Debentures or ~~(ii) attributable to acts~~ the exercise of the ~~Purchaser)~~ Warrants and, when so issued, will be validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Debentures and Warrants nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or Byby-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Fvi) Except as described in Schedule I6(g), to the knowledge of such counsel, there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the Company or any of its subsidiaries, at law or in equity, or before or by any ~~Federal~~federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any ~~Federal~~federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Investors set forth ~~in Article 3~~herein, no registration or filing with, and no consent or approval of, or other action by any ~~Federal~~federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the ~~Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Securities, other than filings pursuant to ~~New York~~ state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification ~~and contribution~~ provisions of the Registration Rights Agreement. (Hviii) ~~To such counsel's knowledge, all~~ All of the ~~Convertible Notes to be issued to the Purchaser will be~~ Company's outstanding capital stock has been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (Iix) ~~Other than approvals or consents which have been obtained in accordance with all applicable laws~~ The issuance and ~~agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security~~ sale of the ~~Company~~ Debentures and Warrants do not, and the shares of ~~which such counsel has knowledge is required by law~~ the Conversion Shares will not, require registration under the Securities Act or ~~by the Certificate of Incorporation or Bylaws~~qualification under any state securities laws. (x) Except for taxes and assessments that are being contested in good faith, ~~or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company ~~or any subsidiary is a party or~~ has paid all taxes. (xi) Except as disclosed on Schedule 6(l), the Company has filed all reports and other documents required to be filed by ~~which its property is bound~~ it with the Securities and Exchange Commission pursuant to the reporting requirements of the 0000 Xxx. (xii) The security interest granted to Investors in connection with the issuance ~~and delivery~~ of the ~~Convertible Notes or~~ Debentures will be a first priority security interest in and lien on the ~~Note Shares and~~ Collateral (as defined in the ~~performance of the Company's obligations under the Transaction Documents~~Debentures).

Appears in 1 contract

Samples: 12% Senior Secured Convertible Debenture and Warrant Purchase Agreement (Americana Publishing Inc)

Opinion of Company's Counsel. ~~The Purchaser~~ Standard shall have received ~~from Xxxxxxx~~an opinion of Xxxxxx X. Xxxx, ~~Xxxxxxxx & Kotel, a Professional Corporation,~~ legal counsel for the Company, ~~an opinion~~ dated the ~~date of the Closing~~Closing Date, in form and ~~scope~~ substance reasonably satisfactory to ~~the Purchaser~~ Standard and ~~its counsel,~~ to the effect that: (Aa) The Company is a corporation duly ~~incorporated~~organized, validly existing and ~~subsisting~~ in good standing under the laws of ~~its jurisdiction~~ the State of ~~incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in~~ New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver and perform the Transaction Documents and to issue and deliver the Note Shares in accordance with the terms of the Convertible Notes and the CharterJersey. (B) The Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the valid and binding obligations of the Company, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (C) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Db) The authorized capital stock of the Company consists exclusively of ~~(a) 5,000,000~~ 200 shares of ~~Preferred Stock~~common stock, of which ~~170,000~~ 185 shares of common stock are issued and outstanding. All outstanding shares of Company are owned of record by the Shareholders, have been ~~designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock~~ duly authorized and ~~1,650,000 have been designated Series C Preferred Stock~~ validly issued and ~~(b) 150,000,000 shares~~ are fully paid and nonassessable. To the best of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's ~~knowledge~~knowledge and belief, ~~15,014,883 shares~~ there are no (~~adjusted for the issuance of options after the date of this Agreement~~i) ~~are subject to~~ outstanding ~~unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of~~ subscriptions~~, warrants~~, options, ~~convertible securities, and~~ warrants or rights to acquire any shares of the capital stock or other ~~rights (contingent or other) to purchase or otherwise acquire equity~~ securities of the Company, (ii) outstanding securities or obligations which are convertible into or exchangeable for any shares of the capital stock or other securities of the Company, or (iii) agreements or arrangements under which the Company is or may become bound to assign or transfer or to sell or otherwise issue any shares of its capital stock or any other securities, other than as contemplated by this Agreement. (c) Immediately prior to the consummation of the transactions described in this Agreement, the Shareholders were the sole registered owners of the Stock. Upon consummation and receipt by Standard of one or more reregistered certificates, Standard will be the registered owner of 185 common shares of the Company and, assuming Standard has purchased same in good faith, for value and without notice of adverse claims, Standard will have acquired all of the rights of the Shareholders in said shares, free of any adverse claim, any lien in favor of the issuer, and any restrictions on transfer imposed by the Company. (d) The Shareholders and the ~~number of shares of Common Stock~~ Company have duly executed and delivered this Agreement and this Agreement constitutes the ~~number of such subscriptions, warrants, options, convertible securities,~~ valid and ~~other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date~~ legally binding obligation of the ~~Closing~~ Shareholders and ~~for transfers~~ of the Company enforceable against them in accordance with ~~the Existing Shareholders Agreement). The designations~~its terms, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to ~~applicable~~ and limited by: (i) the effect of bankruptcy, insolvency, reorganization, ~~insolvency~~receivership, conservatorship, arrangement, moratorium ~~and similar~~ or other laws affecting or relating to the rights of creditors ~~generally~~ generally, and to (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether ~~enforcement is sought~~ considered in a proceeding in equity or at law~~). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof~~. (e) There is no action, suit, proceeding or investigation pending or, to the ~~knowledge~~ best of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge ~~there~~ and belief, threatened against any of the Shareholders or the Company seeking to restrain or questioning the validity or legality of any of the transactions described in this Agreement. (f) The execution, delivery and performance of this Agreement by the Shareholders and by the Company will not, to the best of such counsel's knowledge and belief, (i) constitute a violation of or a default under any material contract, agreement or instrument known to such counsel to which the Company or the Shareholders are ~~no voting trusts~~ subject or ~~agreements~~by which any of the Shareholders' or the Company's properties or assets are bound, ~~shareholders' agreements~~or (ii) result in the creation or imposition of any lien, ~~pledge agreements~~security interest, ~~buy-sell agreements~~claim, ~~rights~~ charge, encumbrance or restriction on any of ~~first refusal~~the Company's material properties or assets or contravene, ~~preemptive rights~~ conflict with or ~~proxies relating~~ result in the violation of any law, regulation or rule known to such counsel or, to the best of such counsel's knowledge and belief, any ~~securities of~~ order, directive, judgment, arbitration award or decree to which the Shareholders or the Company or any of ~~its subsidiaries (whether~~ their respective properties or ~~not the Company or any of its subsidiaries is a party thereto)~~assets are subject. (Eg) ~~The issuance and delivery of~~ To the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge best of such counsel~~, will be free~~ 's knowledge and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counselbelief, there is no ~~(a) action~~license, ~~suit~~permit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by by, or filing with any ~~Federal~~federal or state court or regulatory authority which has not been obtained, ~~state or other governmental agency or instrumentality is or will be necessary~~ taken nor made, required for the ~~valid~~ execution, delivery ~~and~~ or performance of this Agreement by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents Shareholders and the ~~Charter other than filings pursuant to New York securities laws (all of which filings~~Company, other than those which, if not obtained, taken or made, would not have a material adverse affect on the Company, taken as a whole; there is no license, permit, consent or approval of, or other action by, or filing with any federal or state court or regulatory authority which ~~are permitted to be made~~ has not been obtained, taken nor made, required for the operation by the Company after the ~~Closing, have been made~~ Closing of the business currently conducted by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Stock Purchase Agreement (Standard Automotive Corp)

Opinion of Company's Counsel. ~~The Purchaser~~ At Closing, Company and Shareholder shall ~~have received from Xxxxxxx~~deliver to Buyer the written opinion or opinions of Company's counsel, ~~Xxxxxxxx & Kotel, a Professional Corporation, counsel for the Company, an opinion~~ dated the ~~date of the Closing~~Closing Date, in scope and form ~~and scope~~ satisfactory to ~~the Purchaser and its counsel~~Buyer, to the ~~effect that~~following effect: (Ai) ~~The~~ Company is a corporation ~~duly incorporated,~~ validly existing and ~~subsisting~~ in good standing under the laws of ~~its jurisdiction~~ the District of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation Columbia and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of has all ~~subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the~~ requisite corporate power and authority to ~~own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver~~ enter into and perform ~~the Transaction Documents and to issue and deliver the Note Shares in accordance with the terms of the Convertible Notes and the Charter~~this Agreement. (Bii) ~~The Transaction Documents~~ This Agreement the Note, the Guaranty and Security Agreement, the UCCs, the Stock Pledge Agreement, and the Warrant (the "Security Documents") have been duly ~~authorized,~~ executed and delivered by ~~the~~ Company and such action has been duly authorized by all necessary corporate action. This Agreement and the Security Documents constitute the ~~valid~~ legal, valid, and binding ~~obligations~~ obligation of ~~the~~ Company, enforceable against Company in accordance with their ~~respective terms (~~terms, subject to ~~applicable~~ bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium and similar laws relating to or affecting ~~the~~ creditors' and other obligees' rights ~~of creditors~~ generally and to the exercise of judicial discretion in accordance with general principles of equity, regardless of whether enforcement is sought in equity or at law), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreementequitable principles. (Ciii) ~~The~~ None of (a) the execution and delivery by of this Agreement and the ~~Company~~ Security Documents, (b) the consummation of the Transaction Documents, the performance by the Company of its obligations thereunder and the issuance, sale and delivery of the Convertible Notes, will not violate any provision of federal or New York law, the Charter or By-laws of the Company, any order of any court or other agency of government known to such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any of its properties or assets is boundTransaction, or ~~conflict with~~(c) compliance with the terms and conditions of this Agreement will, ~~result in a breach~~ with or without the giving of ~~or constitute (with due~~ notice or lapse of time or both) , conflict with, breach the terms and conditions of, constitute a default ~~under~~ under, or violate Company's articles of incorporation or bylaws, any ~~such indenture~~law, ~~agreement~~ rule, regulation or other ~~instrument~~requirement of any Governmental Authority, or ~~result in the creation or imposition of~~ any ~~Lien upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture~~judgment, ~~agreement~~ decree, order, material agreement, material lease or other ~~instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all~~ material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (D) The authorized capital stock of the Company consists of (a) 5,000,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree instrument known to ~~such~~ counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which ~~the~~ Company ~~or any subsidiary~~ is a party or by which ~~its property~~ Company, the Business or the Station is ~~bound~~ bound. (iv) To counsel's knowledge, counsel is not representing or advising Company as to any pending or threatened suit, action, claim or proceeding that questions or may affect the validity of any action to be taken by Company pursuant to this Agreement or that seeks to enjoin, restrain or prohibit Company from carrying out the Transaction. (v) To counsel's knowledge, counsel is not representing or advising Company as to any outstanding judgment, or any pending or threatened suit, action, claim or proceeding (other than proceedings affecting radio broadcasters generally) that could reasonably be expected to have an adverse effect upon the Station's assets or upon the business or operations of the Station after Closing. (vi) Company is the authorized holder of the FCC Licenses, the FCC Licenses are in full force and effect, and the FCC Licenses are not the subject of any pending license renewal application. The FCC Licenses set forth on Schedule 5.4 constitute all FCC licenses and authorizations issued in connection with the ~~issuance and delivery~~ operation of the ~~Convertible Notes~~ Station. There are no applications pending before the Commission with respect to the Station. (vii) The Commission has consented to the assignment of the FCC Licenses to Buyer and that consent has become a Final Order. (viii) To the best of such Counsel's knowledge, there is no Commission investigation, notice of apparent liability or order of forfeiture, pending or outstanding against the Station, or any complaint, petition to deny or proceeding against or involving Company or the ~~Note~~ Station pending before the Commission. (ix) Shareholder holds title to 100 shares of common stock and no shares of preferred stock, and such Shares are owned free and clear of any Encumbrance. The Shares are validly issued, fully paid and nonassessable. The Shares constitute all the ~~performance~~ issued and outstanding shares of capital stock of Company. To counsel's knowledge, there are no outstanding stock options or stock appreciation rights granted by Shareholder or Company to any person or entity exercisable now or in the future. To counsel's knowledge, Shareholder has no outstanding subscriptions, warrants, calls, commitments or agreements to issue or to repurchase any shares of his stock or other securities, including any right of conversion or exchange under any outstanding security or other instrument. There are no unsatisfied preemptive rights to which Shareholder is entitled. The foregoing opinions shall be for the benefit of and may be relied on by Buyer and Buyer's lenders (specifically identified by Buyer on or before the Closing Date). In rendering such opinions, Company's counsel may rely upon: (a) corporate records of Company, (b) files and records of the ~~Company's obligations under~~ FCC, (c) certificates of public officials; and (d) certificates and representations of the ~~Transaction Documents.~~Company and

Appears in 1 contract

Samples: Option and Stock Purchase Agreement (Radio One Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Investors shall have received ---------------------------- from ~~Xxxxxxx~~LeBoeuf, ~~Xxxxxxxx~~ Lamb, Xxxxxx & ~~Kotel, a Professional Corporation~~XxxXxx, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Investors and ~~its counsel~~counsel to the Investors, subject to customary qualifications, to the effect that: (Ai) The Company is a corporation ~~duly incorporated,~~ validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyConnecticut. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform each of the Transaction Documents and to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Warrant Shares. (Bii) ~~The~~ All of the Transaction Documents have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of the Transaction Documents, the performance by the Company of its obligations thereunder and the ~~issuance, sale~~ issuance and delivery of the ~~Convertible Notes~~Warrant Shares, will not violate any provision of ~~federal or New York~~ law, the ~~Charter~~ Certificate of Incorporation or By-~~laws~~ laws, as amended, of the Company, or, to the knowledge of such counsel, any material provision of any order of any court or other agency of government ~~known to such counsel~~ or any material indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by the Company,~~ to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may rely on a certificate as to certain facts from an officer of the Company, may assume full disclosure to the ~~Purchaser~~ Investors of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists of ~~(a) 5,000,000~~ 20,000,000 shares of Common Stock, without par value and 500,000 shares of Preferred Stock, of which 170,000 shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stockwithout par value. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of ~~Series C~~ Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record be issued and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of ~~each class or series of~~ the authorized capital stock of the Company are as set forth in the ~~Charter~~Certificate of Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party theretogenerally). (Ev) The ~~issuance and delivery~~ shares of Common stock issuable upon exercise of the ~~Note Shares~~ Warrants have been duly authorized and reserved by all required corporate action ~~and~~and when issued and paid for in accordance with the terms of the Warrants, ~~when delivered against the purchase price therefore, said shares~~ will ~~have been~~ be validly issued, ~~and will be~~ fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liabilitythereof. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note Shares~~ shares of Common stock issuable upon exercise of the Warrants is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the ~~Charter~~ Certificate of Incorporation or ~~By-~~By- laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Fvi) ~~Except as described in Schedule I~~XxxXxx, L.L.P. has not been engaged by the Company to ~~the knowledge of such counsel, there is no~~ give substantive legal advice with respect to any (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Senior Subordinated Convertible Promissory Note and Warrant Purchase Agreement (Information Management Associates Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation~~Hale xxx Dorr XXX, counsel for the Company, an opinion dated ~~the date~~ as of the ~~Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation~~, except that such counsel shall not be required to express any opinion with respect to~~ . To the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review~~ knowledge of ~~good standing certificates by~~ such counsel, the Company has no subsidiaries. The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the CompanyVirginia. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement and the ~~Transaction Documents~~ Amended Registration Rights Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The Transaction Documents~~ This Agreement and the Amended Registration Rights Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Amended Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement and the ~~Transaction Documents~~Amended Registration Rights Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York law~~law applicable to the Company, the Charter or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known~~ specifically applicable to ~~such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company or its property or any agreement of ~~its properties or assets is bound~~the Company listed on Schedule II hereto, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Purchasers of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Amended Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Amended Registration Rights Agreement. (Div) The authorized capital stock of the Company as of the date hereof consists of (ai) ~~5,000,000~~ 1,562,500 shares of Class A Convertible Preferred Stock, ~~of which 170,000 shares have been designated Series~~ $.001 par value (the "Class A Preferred Stock"), ~~1,620,700 have been designated Series~~ (ii) 2,151,420 shares of Class B Convertible Preferred Stock, $.001 par value (the "Class B Preferred ~~Stock and 1,650,000 have been designated Series~~ Stock"), (iii) 3,188,889 shares of Class C Convertible Preferred Stock, $.001 par value (the "Class C Preferred ~~Stock~~ Stock"), (iv) 2,045,785 shares of Class D Convertible Preferred Stock, $.001 par value (the "Class D Convertible Preferred Stock") and (bv) ~~150,000,000~~ 16,000,000 shares of Common Stock. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 4,312,500 shares of Common ~~Stock (exclusive of Additional Option Shares)~~Stock, ~~99,804.2276~~ 1,562,500 shares of ~~Series~~ Class A Preferred Stock, ~~1,077,026~~ 2,151,420 shares of ~~Series~~ Class B Preferred Stock and 3,188,889 shares of Class C Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof and no shares of ~~Series C~~ Class D Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately Immediately prior to the Closing, based on a review by such counsel of the ~~shareholders~~ stock record and minute books of the Company, the stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule ~~III (subject to adjustment for the issuance~~ II and ~~exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)~~Schedule III. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable against the Company and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, ~~reorganization~~reorgani zation, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~II, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or ~~other~~otherwise) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ II or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such ~~counsel~~ counsel, the Company has no obligation (contingent or ~~other~~otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Preferred Shares and the Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Shares and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Preferred Shares have been validly issued, ~~and will be~~ are fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than~~ and, to the knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company except as set forth in the Amended Registration Rights Agreement; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law or (ii) attributable~~ Preferred Shares and, when so issued, will be validly issued, fully paid and nonassessable with no personal liability attaching to ~~acts of~~ the ~~Purchaser)~~ ownership thereof and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Amended Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person, except as set forth on Schedule II. (Fvi) Except as described in Schedule III, to the knowledge of such ~~counsel,~~ counsel there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gvii) To the knowledge of such counsel, no third party has claimed that any person employed by or affiliated with the Company has violated or may be violating any of the terms or conditions of his employment, non-competition or non-disclosure agreement with such third party, or disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees. (viii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, ~~no registration or filing with,~~ the offer and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company sale of the ~~Transaction Documents,~~ Series D Preferred Stock pursuant to the ~~issuance, sale and delivery~~ terms of ~~the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents~~ this Agreement and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Amended Registration Rights ~~Agreement, such counsel may assume compliance by the Company at such time with~~ Agreement are exempt from the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements Section 5 of the Securities Act ~~and all applicable New York~~ of 1933, as amended, and, under such securities ~~laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable~~ laws ~~and agreements~~as they presently exist, ~~no approval or consent~~ the issuance of ~~or from any holder of indebtedness of which such counsel has knowledge or any security~~ Common Stock upon conversion of the ~~Company of which~~ Series D Preferred Stock will also be exempt from such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance registration and ~~delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents~~qualification requirements.

Appears in 1 contract

Samples: Convertible Preferred Stock Purchase Agreement (Careerbuilder Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received ---------- ----------------- from ~~Xxxxxxx~~Xxxxx, ~~Xxxxxxxx~~ Xxxx & ~~Kotel, a Professional Corporation~~Xxxxx LLP, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, substantially to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of ~~its jurisdiction~~ the State of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax yearDelaware. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company is duly ~~licensed or~~ qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company Massachusetts and ~~each of such subsidiaries is wholly-owned, directly or indirectly, by the Company~~California. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Registration Rights Agreement and the Stockholders Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bii) ~~The Transaction Documents~~ This Agreement, the Registration Rights Agreement, the Stockholders Agreement and the Warrant Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Registration Rights Agreement and the Stockholders Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York~~ law, the Charter or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known to such counsel~~ or any ~~material~~ indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by~~ to which the Company, ~~to which the Company~~ or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the ~~Purchaser~~ Purchasers of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights ~~Agreement,~~ Agreement may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Div) The authorized capital stock of the Company consists ~~of (a) 5,000,000~~ of: 10,000,000 shares of Series A Common Stock, par value $0.001; 64,031 shares of Series B Common Stock, par value $0.001; 81,366 shares of Series C Common Stock, par value $0.001; 59,250 shares of Series D Common Stock, par value $0.001; 250,050 shares of Series E Common Stock, par value $0.001 (together the foregoing classes of Common Stock are referred to herein as the "Common Stock"); 562,500 shares of Series A Convertible Preferred Stock, par value $.01 per share; 344,043 shares of ~~which 170,000 shares have been designated~~ Series A B Convertible Preferred Stock, ~~1,620,700 have been designated~~ par value $.01 per share; 41,544 shares of Series B C Convertible Preferred Stock ~~and 1,650,000 have been designated~~ par value $.01 per share; 891,314 shares of Series C D Convertible Preferred Stock ~~and (b) 150,000,000~~ par value $.01 per share; 457,980 shares of ~~Common~~ Series E-1 Convertible Preferred Stock, par value $.01 per share; and 1,346,650 shares of Series E Convertible Preferred Stock, par value $.01 per share of an undesignated subseries. Immediately prior to the Closing, ~~based solely on a review~~ the following stock of the ~~Company's stock transfer ledger~~Company will be issued, ~~76,371,375 shares of Common Stock (exclusive of Additional Option Shares)~~outstanding, ~~99,804.2276~~ fully paid and nonassessable: 3,834,129 shares of Series A ~~Preferred~~ Common Stock, ~~1,077,026~~ par value $0.001; 61,687 shares of Series B ~~Preferred Stock and no~~ Common Stock, par value $0.001; 65,522 shares of Series C Common Stock, par value $0.001, 57,984 shares of Series D Common Stock, par value $0.001; 146,321 shares of Series E Common Stock, par value $0.001; 562,500 shares of Series A Convertible Preferred Stock, par value $.01 per share; 344,043 shares of Series B Convertible Preferred Stock, par value $.01 per share; 41,544 shares of Series C Convertible Preferred Stock ~~will have been issued. The Company has reserved 21,303,000~~ par value $.01 per share; and 709,970 shares of ~~Common~~ Series D Convertible Preferred Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised optionspar value $.01 per share. ~~To such counsel's knowledge, immediately~~ Immediately prior to the Closing, the ~~shareholders~~ stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock or Preferred Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule ~~III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date~~ IV. For purposes of the ~~Closing and for transfers~~ foregoing opinion, counsel may rely on the records in ~~accordance with the Existing Shareholders Agreement)~~its possession. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the ~~Charter,~~ Charter and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~IV, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company ~~will~~ shall be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule ~~III~~ IV or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ev) The Preferred Shares and the Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Shares and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Preferred Shares have been validly issued, ~~and will be~~ are fully paid and nonassessable ~~with no personal liability attaching~~ and, to the ~~ownership thereof (other than~~ knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company except as set forth in the Registration Rights Agreement; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law or (ii) attributable to acts of the Purchaser)~~ Preferred Shares and, when so issued, will be validly issued, fully paid and nonassessable and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company except as set forth in the Registration Rights Agreement. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, ~~that~~ which has not been ~~waived~~ waived, or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person, other than the rights set forth in the Thomson Agreement. (Fvi) ~~Except as described~~ Assuming that the Company's Board of Directors has duly authorized the Company to file a Certificate of Designation setting the price of the Warrant Shares each time such shares are to be issued, and that such a Certificate of Designation has been filed, if issued against payment therefor in ~~Schedule I~~accordance with the Warrant Agreement, such Warrant Shares will be validly issued, fully paid and nonassessable, and, to the knowledge of such counsel, will be free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through the Company except as set forth in the Registration Rights Agreement. The issuance, sale or delivery of the such shares is not subject to any preemptive right of stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, which has not been waived, or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person, other than the rights set forth in the Thomson Agreement. (vii) To the knowledge of such counsel there is no (aA) action, ~~suit, claim,~~ suit proceeding or investigation pending or threatened ~~by or~~ against the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the ~~qualification~~ clarification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gviii) Assuming the accuracy of the representations and warranties of the ~~Purchaser~~ Purchasers set forth in Article 3III, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary under current law for the valid execution, delivery and performance by the Company of ~~the Transaction Documents~~this Agreement, the issuance, sale and delivery of the ~~Convertible Notes or~~ Preferred Shares or, upon conversion thereof, the issuance and delivery of the ~~Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Conversion Shares, other than filings pursuant to ~~New York~~ state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or of enforceability of the indemnification and contribution ~~provisions~~ provision of the Registration Rights Agreement. (Hix) ~~To such counsel's knowledge, all~~ All of the ~~Convertible Notes to be issued to the Purchaser will be~~ outstanding shares of capital stock have been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Series E 1 Convertible Preferred Stock Purchase Agreement (CCBN Com)

Opinion of Company's Counsel. The Purchaser shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation,~~ ----------------------------- the general counsel ~~for~~ of the Company, ~~an opinion~~ one or more opinions dated as of the date of ~~the~~ such Closing, in form and scope satisfactory to the Purchaser and its counsel, to the effect that, subject to Section 5.2: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation. The Company has the corporate power and authority to execute, ~~except that such counsel shall not be required~~ deliver and perform this Agreement the Convertible Notes and the Rights Agreement, (a) to ~~express any opinion with respect to~~ issue, sell and deliver the ~~Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review~~ Convertible Notes and the Warrants, (b) upon exercise of ~~good standing certificates by such counsel,~~ the ~~Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which~~Warrants, to issue and deliver the ~~knowledge of such counsel~~Warrant Shares, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries and (c) upon conversion of the ~~Company~~ Convertible Notes, to issue and ~~each of such subsidiaries is wholly-owned, directly or indirectly, by~~ deliver the ~~Company~~Conversion Shares. The Company has the corporate power and authority to own and hold its properties and to ~~carry on~~ conduct its business as ~~currently~~ it is presently being conducted~~. The Company has~~ . (ii) This Agreement, the ~~corporate power and authority to execute, deliver and perform the Transaction Documents and to issue and deliver the Note Shares in accordance with the terms of~~ Warrants the Convertible Notes and the ~~Charter. (B) The Transaction Documents~~ Rights Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the ~~Registration~~ Rights Agreement. (Ciii) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Convertible Notes, the Warrants and the Rights Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the Convertible ~~Notes~~Notes and the Warrants, the issuance and delivery of the Warrant Shares upon exercise of the Warrants and the issuance and delivery of the Conversion Shares upon conversion of the Convertible Notes will not (x) violate any provision of ~~federal or New York law~~law applicable to the Company, the Charter or By-~~laws~~ laws, as amended, of the Company, (y) to the knowledge of such counsel, violate any order of any court or other agency of government ~~known~~ specifically applicable to ~~such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company or its property or any agreement of ~~its properties or assets is bound~~the Company, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a material default ~~under~~ under, accelerate or terminate any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights AgreementCompany. (Div) The ~~authorized capital stock of~~ Convertible Notes, the ~~Company consists of (a) 5,000,000 shares of Preferred Stock~~Warrants, ~~of which 170,000 shares~~ the Warrant Shares and the Conversion Shares have been designated Series A Preferred Stock, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock and (b) 150,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issuedduly authorized. The ~~Company has reserved 21,303,000 shares~~ issuance, sale and delivery of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and ~~employee stock options issued after~~ the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement Warrants and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the ~~Note~~ Warrant Shares upon the exercise of the Warrants and the issuance and delivery of the Conversion Shares upon the Conversion of the Convertible Notes have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Convertible Notes have been validly issued, with no personal liability attaching to the ownership thereof; the Warrants have been validly issued and the Warrant Shares and the Conversion Shares have been duly reserved for issuance upon exercise of the Warrants and conversion of the Convertible Notes and, when issued in accordance with the terms of this Agreement and the Company's Charter, as amended, will be validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any personthereof. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gv) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction DocumentsIII, the ~~issuance,~~ offer and sale ~~and delivery~~ of the Convertible Notes ~~or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents~~ and the ~~Charter other than filings~~ Warrants pursuant to ~~New York securities laws (all~~ the terms of ~~which filings, other than those which~~ this Agreement are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with exempt from the registration requirements of Section 5 of the Securities ~~Act and with applicable state~~ Act, as amended, and, under such securities laws ~~and may disclaim any opinion~~ as to they presently exist, the ~~validity or enforceability~~ issuance of Warrant Shares upon exercise of the ~~indemnification~~ Warrants and ~~contribution provisions~~ the issuance of the ~~Registration Rights Agreement. (H) To such counsel's knowledge, all~~ Conversion Shares upon the conversion of the Convertible Notes to will also be ~~issued to the Purchaser will be issued in compliance with the~~ exempt from such registration ~~requirements of the Securities Act~~ and ~~all applicable New York securities laws~~qualification requirements. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Interliant Inc)

Opinion of Company's Counsel. The ~~Purchaser~~ Purchasers shall have received from ~~Xxxxxxx~~Dewex Xxxxxxxxxx XXX, ~~Xxxxxxxx & Kotel, a Professional Corporation,~~ special counsel for the Company or from the general counsel of the Company, ~~an opinion~~ one or more opinions dated ~~the date~~ as of the ~~Closing~~Closing Date, in form and scope satisfactory to the ~~Purchaser~~ Purchasers and ~~its~~ their counsel, to the effect that: (Ai) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. Based solely on a review of good standing certificates by such counsel, the Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which, to the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries of the Company and each of such subsidiaries is wholly-owned, directly or indirectly, by the Company. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement and the ~~Transaction Documents~~ Investors Agreement, to issue, sell and deliver the Preferred Shares and the Warrants and, upon conversion or exercise thereof, to issue and deliver the ~~Note Shares in accordance with~~ Conversion Shares. The Company has the ~~terms of the Convertible Notes~~ corporate power and ~~the Charter~~authority to own its properties and to conduct its business as it is presently being conducted. (Bii) ~~The Transaction Documents~~ This Agreement and the Investors Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the ~~Registration Rights~~ Investors Agreement. (Ciii) The execution and delivery by the Company of this Agreement and the ~~Transaction Documents~~Investors Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and the Warrants and, upon conversion or exercise thereof, the issuance and delivery of the Conversion Shares, will not (x) violate any provision of ~~federal or New York law~~law applicable to the Company, the Charter or By-~~laws~~ laws, as amended, of the Company, (y) to the knowledge of such counsel, violate any order of any court or other agency of government ~~known~~ specifically applicable to ~~such counsel or any material indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which~~ the Company or its property or any agreement of ~~its properties or assets is bound~~the Company, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a material default ~~under~~ under, accelerate or terminate any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties or assets of the Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights AgreementCompany. (Div) The authorized capital stock of the Company as of the date hereof consists of (ai) ~~5,000,000~~ 2,647,658 shares of Series A Convertible Preferred Stock, ~~of which 170,000 shares have been designated~~ $.0l par value (the "Series A Preferred Stock~~, 1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock~~ ") and (bii) ~~150,000,000~~ 35,000,000 shares of Common Stock. Immediately prior to the Closing, based solely on a review of the Company's stock transfer ledger, 76,371,375 shares of Common Stock (exclusive of Additional Option Shares), 99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately prior to the Closing, the shareholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement). The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (subject to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law). Except as set forth in Schedule III and except for the Convertible Notes and employee stock options issued after the date hereof, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in Schedule III or as provided for in this Agreement and in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (E) The issuance and delivery of the Note Shares have been duly authorized by all required corporate action and, when delivered against the purchase price therefore, said shares will have been validly issued, and will be fully paid and nonassessable with no personal liability attaching to the ownership thereof (other than such liability, if any, as may be (i) imposed by Section 630 of the New York Business Corporation law or (ii) attributable to acts of the Purchaser) and, to the knowledge of such counsel, will be free and clear of all Liens. Such counsel will not be required to express any opinion with respect to veil piercing or comparable bases of liability. Neither the issuance, sale nor delivery of the Note Shares is subject to any preemptive right of shareholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, that has not been waived or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (F) Except as described in Schedule I, to the knowledge of such counsel, there is no (a) action, suit, claim, proceeding or investigation pending or threatened by or against the Company or any of its subsidiaries, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (b) arbitration proceeding relating to the Company or any of its subsidiaries pending under collective bargaining agreements or (c) governmental inquiry pending or threatened against the Company or any of its subsidiaries (including, without limitation, any inquiry as to the qualification of the Company or any of its subsidiaries to hold or receive any license or permit). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (G) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Article 3, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of the Transaction Documents, the issuance, sale and delivery of the Convertible Notes or the issuance and delivery of the Note Shares under the circumstances contemplated by the Transaction Documents and the Charter other than filings pursuant to New York securities laws (all of which filings, other than those which are permitted to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (H) To such counsel's knowledge, all of the Convertible Notes to be issued to the Purchaser will be issued in compliance with the registration requirements of the Securities Act and all applicable New York securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Interliant Inc)

Opinion of Company's Counsel. The Purchaser shall have received from ~~Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation~~Xxxxxx X. Xxxxxxxx, counsel for the Company, an opinion dated the ~~date of the Closing~~Closing Date, in form and ~~scope~~ substance satisfactory to the ~~Purchaser and its counsel~~Purchaser, to the effect that: (Aa) The Company is a corporation duly incorporated, validly existing and ~~subsisting~~ in good standing under the laws of its jurisdiction of incorporation, except that such counsel shall not be required to express any opinion with respect to the Company's failure to file a General Corporate Business Franchise Tax Return in New York with respect to its 1993 tax year. ~~Based solely on a review of good standing certificates by such counsel, the~~ The Company is duly licensed or qualified to transact business as a foreign corporation and is in good standing in each ~~other~~ jurisdiction in ~~which, to~~ which the knowledge of such counsel, it is required to be so qualified, except that such counsel shall not be required to express any opinion with respect to the absence of qualification in Illinois, Georgia, California or Texas. To the knowledge of such counsel, Schedule II to this Agreement contains a complete list of all subsidiaries nature of the ~~Company and each~~ business transacted by it or the character of the properties owned or leased by it requires such ~~subsidiaries is wholly-owned, directly~~ licensing or ~~indirectly, by the Company~~qualification. The Company has the corporate power and authority to own and hold its properties and to carry on its business as currently conducted and as proposed to be conducted. The Company has the corporate power and authority to execute, deliver and perform this Agreement, the ~~Transaction Documents~~ Registration Rights Agreement, the Stock Restriction Agreement and the Stockholders Agreement, to issue, sell and deliver the Preferred Shares and, upon conversion thereof, to issue and deliver the ~~Note Shares in accordance with the terms of the Convertible Notes and the Charter~~Conversion Shares. (Bb) ~~The Transaction Documents~~ This Agreement, the Registration Rights Agreement, the Stock Restriction Agreement and the Stockholders Agreement have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms (~~subject~~ subject, as to enforcement of remedies, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally), except that such counsel need not express any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Cc) The execution and delivery by the Company of this Agreement, the ~~Transaction Documents~~Registration Rights Agreement, the Stock Restriction Agreement and the Stockholders Agreement, the performance by the Company of its obligations ~~thereunder~~ hereunder and thereunder, the issuance, sale and delivery of the ~~Convertible Notes~~Preferred Shares and, upon conversion thereof, the issuance and delivery of the Conversion Shares, will not violate any provision of ~~federal or New York~~ law, the Charter or By-~~laws~~ laws, as amended, of the Company, any order of any court or other agency of government ~~known to such counsel~~ or any ~~material~~ indenture, agreement or other ~~instrument, identified~~ instrument known to such counsel ~~in an officer's certificate provided by the Company,~~ to which the Company or any of its ~~properties~~ property or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any ~~Lien~~ lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the ~~properties~~ property or assets of the ~~Company or any of its subsidiaries pursuant to any such indenture, agreement or other instrument~~Company. In rendering the foregoing opinion, such counsel may assume full disclosure to the Purchaser of all material facts ~~and may rely, as to factual matters, on the representations of the Purchaser and the Company contained in the Transaction Documents~~ and, with respect to performance by the Company of its obligations under the Registration Rights Agreement, may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Dd) The authorized capital stock of the Company consists of (ai) ~~5,000,000~~ 500,000 shares of ~~Preferred Stock~~preferred stock, of which ~~170,000~~ 500,000 shares have been designated Series A Convertible Preferred Stock, ~~1,620,700 have been designated Series B Preferred Stock and 1,650,000 have been designated Series C Preferred Stock~~ and (bii) ~~150,000,000~~ 1,000,000 shares of Common Stock. Immediately prior to the Closing, ~~based solely on a review of the Company's stock transfer ledger, 76,371,375~~ 400,000 shares of Common Stock ~~(exclusive of Additional Option Shares)~~will be validly issued, ~~99,804.2276 shares of Series A Preferred Stock, 1,077,026 shares of Series B Preferred Stock~~ and fully paid and nonassessable with no personal liability attaching to the ownership thereof and no shares of ~~Series C Preferred Stock~~ preferred stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which, to such counsel's knowledge, 15,014,883 shares (adjusted for the issuance of options after the date of this Agreement) are subject to outstanding unexercised options. To such counsel's knowledge, immediately Immediately prior to the Closing, the ~~shareholders~~ stockholders of record and holders of record of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in Schedule III (subject to adjustment for the issuance and exercise of employee stock options between the date hereof and the date of the Closing and for transfers in accordance with the Existing Shareholders Agreement)II. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class or series of authorized capital stock of the Company are as set forth in the Charter, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws (~~subject~~ subject, as to enforcement, to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting the rights of creditors ~~generally and to general principles of equity, regardless of whether enforcement is sought in equity or at law~~generally). Except as set forth in Schedule ~~III and except for the Convertible Notes and employee stock options issued after the date hereof~~II, to the knowledge of such counsel, immediately prior to the Closing no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or acquire equity securities of the Company will be authorized or outstanding and there will be no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except ~~as set~~ asset forth in Schedule ~~III~~ II or as provided for ~~in this Agreement and~~ in the Charter, to the knowledge of such counsel the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each optionholder of the Company, to such counsel's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). (Ee) The Preferred Shares and the Conversion Shares have been duly authorized. The issuance, sale and delivery of the Preferred Shares and the issuance and delivery of the ~~Note~~ Conversion Shares upon conversion of the Preferred Shares have been duly authorized by all required corporate ~~action and, when delivered against~~ action; the ~~purchase price therefore, said shares will~~ Preferred Shares have been validly ~~issued,~~ issued and ~~will be~~ are fully paid and nonassessable with no personal liability attaching to the ownership thereof ~~(other than~~ and, to the knowledge of such ~~liability~~counsel, ~~if any~~are free and clear of all liens, ~~as may be (i)~~ charges, restrictions, claims and encumbrances imposed by ~~Section 630~~ or through the Company; and the Conversion Shares have been duly reserved for issuance upon conversion of the ~~New York Business Corporation law or (ii) attributable~~ Preferred Shares and, when so issued, will be validly issued, fully paid and nonassessable with no personal liability attaching to ~~acts of~~ the ~~Purchaser)~~ ownership thereof and, to the knowledge of such counsel, will be free and clear of all ~~Liens. Such counsel will not be required to express any opinion with respect to veil piercing~~ liens, charges, restrictions, claims and encumbrances imposed by or ~~comparable bases of liability~~through the Company. Neither the issuance, sale ~~nor~~ or delivery of the ~~Note~~ Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of ~~shareholders~~ stockholders of the Company arising under law or the Charter or By-laws of the Company, each as amended, ~~that has not been waived~~ or, to the knowledge of such counsel, to any contractual right of first refusal or other right in favor of any person. (Ff) Except as described in Schedule I, to the knowledge of such ~~counsel,~~ counsel there is no (aA) action, suit, claim, proceeding or investigation pending or threatened by against or ~~against~~ affecting the ~~Company or any of its subsidiaries~~Company, at law or in equity, or before or by any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (bB) arbitration proceeding relating to the Company ~~or any of its subsidiaries~~ pending under collective bargaining agreements or (cC) governmental inquiry pending or threatened against or affecting the Company ~~or any of its subsidiaries~~ (including, without limitation, any inquiry as to the qualification of the Company ~~or any of its subsidiaries~~ to hold or receive any license or permit). To the knowledge of such counsel, ~~neither~~ the Company ~~nor any of its subsidiaries~~ is not in default with respect to any order, writ, injunction or decree known to such counsel of any court or of any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. (Gg) To the knowledge of such counsel, no third party has claimed that any person employed by or affiliated with the Company has violated or may be violating any of the terms or conditions of his employment, non-competition or nondisclosure agreement with such third party or any other agreement or restrictive covenant relating to the right of any such person to be employed by the Company because of the nature of the business conducted or to be conducted by the Company or relating to the ownership or use of intellectual property rights, trade secrets or proprietary information of others, or disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees. (h) Assuming the accuracy of (a) the representations and warranties of the Purchaser set forth in Article 3III and (b) the representations and warranties of the Company set forth in Sections 2.20 and 2.21, no registration or filing with, and no consent or approval of, or other action by any Federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance by the Company of this Agreement, the ~~Transaction Documents~~Registration Rights Agreement, the Stock Restriction Agreement and the Stockholders Agreement, the issuance, sale and delivery of the ~~Convertible Notes or~~ Preferred Shares or, upon conversion thereof, the issuance and delivery of the ~~Note Shares under the circumstances contemplated by the Transaction Documents and the Charter~~ Conversion Shares, other than filings pursuant to ~~New York~~ state securities laws (all of which filings, other than those which are ~~permitted~~ required to be made after the Closing, have been made by the Company). In rendering the foregoing opinion with respect to performance by the Company of its obligations under the Registration Rights Agreement, such counsel may assume compliance by the Company at such time with the registration requirements of the Securities Act and with applicable state securities laws and may disclaim any opinion as to the validity or enforceability of the indemnification and contribution provisions of the Registration Rights Agreement. (Hi) ~~To such counsel's knowledge, all~~ All of the ~~Convertible Notes to be issued to the Purchaser will be~~ outstanding shares of Common Stock have been issued in compliance with the registration requirements of the Securities Act and all applicable ~~New York~~ state securities laws. (I) Other than approvals or consents which have been obtained in accordance with all applicable laws and agreements, no approval or consent of or from any holder of indebtedness of which such counsel has knowledge or any security of the Company of which such counsel has knowledge is required by law or by the Certificate of Incorporation or Bylaws, or by any indenture, agreement or other instrument, identified to such counsel in an officer's certificate provided by the Company, to which the Company or any subsidiary is a party or by which its property is bound in connection with the issuance and delivery of the Convertible Notes or the Note Shares and the performance of the Company's obligations under the Transaction Documents.

Appears in 1 contract

Samples: Stock Purchase Agreement (Neon Systems Inc)

Common use of Opinion of Company's Counsel Clause in Contracts