Opinion of Counsel to the Company. The opinion of Associate General Counsel, Corporate Treasury of the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that: (A) The Company has been duly incorporated and is validly existing under the laws of the State of Delaware. (B) This Agreement has been duly authorized, executed and delivered by the Company. (C) Neither the execution and delivery of this Agreement nor the issuance and sale of the Preferred Stock by the Company as provided herein will (i) contravene the certificate of incorporation or by-laws of the Company or (ii) result in any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a whole. (D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein. (E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder. (F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder. (H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (General Electric Capital Corp), Underwriting Agreement (General Electric Capital Corp), Underwriting Agreement (General Electric Capital Corp)
Opinion of Counsel to the Company. The opinion of Associate General CounselSullivan & Cromwell LLP, Corporate Treasury of counsel to the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that:
(Ai) The Company is duly registered as a bank holding company under the Bank Holding Company Act.
(ii) The Indenture has been duly incorporated authorized, executed and is validly existing delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iii) The series of Notes has been duly authorized and established in conformity with the Indenture and, when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with the Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with the Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date hereof or such Settlement Date, as the case may be, under the Federal laws of the United States and the laws of the State of DelawareNew York for the issuance, sale and delivery of the Notes by the Company to or through the Agents in accordance with this Agreement have been obtained or made; provided, however, that such counsel need express no opinion with respect to state securities laws.
(Bv) This Agreement has and, if applicable, such Terms Agreement have each been duly authorized, executed and delivered by the Company.
(Cvi) Neither the The execution and delivery of this Agreement nor the issuance and sale of the Preferred Stock by the Company as provided herein of the Indenture and this Agreement and, if applicable, such Terms Agreement do not, and the preparation, execution and issuance of each particular Note in accordance with the Indenture, the sale by the Company of such Note in accordance with this Agreement and, if applicable, such Terms Agreement and the performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement and the Notes will not (ia) contravene violate the certificate of incorporation or by-laws of the Company Company, in each case as in effect at the date of such opinion, or (iib) result in violate any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal existing Federal law of the United States applicable to the Company; provided, however, that, for the purposes of America to which the Company is subject this paragraph (other than vi), such counsel need express no opinion with respect to applicable the Federal or state securities or Blue Sky laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and related laws, and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specially designated nationals and organizations; provided, further, that insofar as to which performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement, and the Notes is concerned, such counsel need not express any opinion) no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a wholeaffecting creditors' rights.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(Fvii) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s 's knowledge, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or and (b) no proceedings therefor have been initiated or threatened by the CommissionSEC.
(Gviii) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except As counsel for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each caseCompany, such counsel need not express reviewed the Registration Statement and the Prospectus, and any opinion) comply amendment or supplement thereto, participated in discussions with the Agents' representatives and those of the Company and its independent accountants, and advised the Company as to form the requirements of the 1933 Act and the applicable 1933 Act Regulations, and on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of their understanding of the applicable law (including the requirements of Form S-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the 1933 Act, they confirm to the Agents that, in their opinion, each part of the Registration Statement, when such part became effective, and the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, appeared on their face to be appropriately responsive, in all material respects with relevant to the offering of the Notes, to the requirements of the 1933 Act, the 1939 Act and the applicable rules and regulations of the Commission SEC thereunder.
(H) Nothing , and nothing has come to their attention in the course of such counsel’s attention review that would lead such counsel has caused them to believe that (except for that, insofar as relevant to the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefromoffering of the Notes, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it Statement, when such part became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or that, and (ii) insofar as relevant to the Pricing Disclosure Material at offering of the Pricing Effective Time Notes, the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, or, if applicable, the applicable Settlement Date, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may say that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, except (i) for those made under the captions "Description of Debt Securities We May Offer" and "Plan of Distribution" in the Prospectus, under the captions "Description of Notes We May Offer" and "Supplemental Plan of Distribution" in the prospectus supplement forming a part of the Prospectus and under the captions "Description of the Notes" and "Underwriting," or similar or comparable captions, in any pricing supplement forming a part of the Prospectus, insofar as they relate to provisions therein described, of the Notes, the Indenture and this Agreement and, if applicable, such Terms Agreement and (iiiii) the Prospectus as of its date and as accuracy of the Closing Date descriptions of the Federal laws of the United States contained in the prospectus supplement forming a part of the Prospectus under the caption "United States Taxation," and that they do not express any untrue opinion or belief as to the financial statements or other financial data contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or as to the statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light eligibility of the circumstances Trustee under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered the Indenture. Such counsel may also say that their letter is furnished to the Underwriters at Agents by them as counsel for the Closing Date have been duly authorized and, when issued Company and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have is solely for the rights set forth in benefit of the Company’s certificate of incorporationAgents. Such counsel may base their opinions, as amended to certain matters, on certificates of officers of the Company and may rely as to all matters relating to the Closing Datelaws of the Commonwealth of Puerto Rico upon the opinion of Brunilda Santos de Alvarez, Esq., delivered pursuant to Section 5(a)(0) xxxxxx.
Appears in 1 contract
Samples: Distribution Agreement (Popular Inc)
Opinion of Counsel to the Company. The opinion of Associate General Counsel, Corporate Treasury (a) Each of the CompanyCompany and each Significant Subsidiary is a corporation, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that:
(A) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State state or other jurisdiction of Delaware.its incorporation. The Company has all requisite corporate power and corporate authority to own or lease its properties and to conduct its business as described in the Prospectus; based on the business of the Company and each Significant Subsidiary as described in the Registration Statement, each Significant Subsidiary has all requisite corporate power and corporate authority to own or lease its properties and to conduct its business as described in such minute books;
(Bb) This Agreement has The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus; the issued and outstanding shares of the Company's capital stock have been duly authorized, executed authorized and delivered validly issued by the Company., are fully paid and nonassessable and, to the knowledge of such counsel, have not been issued in violation of any preemptive right arising under the Delaware General Corporation Law or, to such counsel's knowledge, similar rights that entitle or will entitle any person to acquire any shares of capital stock of the Company upon the issuance and sale of Shares of the Company, which rights have not been waived, or in violation of any co-sale right, registration right, right of first refusal or other similar right;
(Cc) Neither All of the execution outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and delivery validly issued and are fully paid and non-assessable, are owned by the Company, directly or indirectly, through one or more subsidiaries, and, to the knowledge of this Agreement nor such counsel, are free and clear of any pledge, lien, security interest, encumbrance, or claim;
(d) The Company has duly authorized the issuance and sale of the Preferred Stock Shares to be sold by it hereunder on the Closing Date; such Shares, when issued and delivered by the Company as provided herein will (i) contravene the certificate of incorporation or by-laws of the Company or (ii) result and paid for in any violation of any of (A) accordance with the terms or provisions of any lawhereof, rule or regulation of the State of New Yorkwill be validly issued, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound fully paid and which is material to the Company nonassessable and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form will conform in all material respects to the description thereof contained in the Prospectus and will be sold free and clear of any pledge, lien, security interest, encumbrance or claim, and, to the knowledge of such counsel, not in violation of or subject to any preemptive right, co-sale right, right of first refusal or similar rights that entitle or will entitle any person to acquire any shares of capital stock of the Company upon the issuance and sale of Shares of the Company which rights have not previously been waived, in connection with the 1934 Act and the applicable rules and regulations purchase or sale of any of the Commission thereunder.Shares;
(Fe) The Registration Statement is has been declared effective under the 1933 Act and, Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the best manner and within the time period required by Rule 424(b) and any required filing of an abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations has been made in the manner and within the time period required by such rule 462(b); and to such counsel’s 's knowledge, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued issued, and to such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or, to the knowledge of such counsel, are threatened under the 1933 Act or proceedings therefor initiated or threatened by the Commission.Act;
(Gf) The Registration Statement at the Effective Time Statement, as amended, and the Prospectus and, if any, each amendment and supplement thereto (except for the financial statements and notes thereto, schedules and other data or information of an accounting, financial or statistical nature included therein, as to which such counsel need not express any supplements and amendments thereto opinion), as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stockdates, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 requirements of the Act and the applicable rules Rules and regulations Regulations;
(g) To the knowledge of such counsel, there are no contracts or documents to which the Company or any Subsidiary is a party which are required by the Act to be filed as exhibits to the Registration Statement which are not filed as required by the Act and the Rules and Regulations;
(h) To the knowledge of such counsel, there is not pending or threatened against the Company or any Subsidiary any action, suit, proceeding or investigation before or by any court, regulatory body, or administrative agency or any other governmental agency or body, domestic or foreign, of a character required to be disclosed in the Registration Statement or the Prospectus which is not disclosed therein;
(i) The statements set forth under the headings "Description of Capital Stock", "Shares Eligible for Future Sale", and "Risk Factors-Shares Eligible for Future Sale", and statements in response to Items 14 and 15 of Part II of the Commission thereunder.Registration Statement, in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, provide a fair summary of such legal matters, documents and proceedings in all material respects;
(Hj) Nothing The Company has come all requisite corporate right, power, and authority to enter into this Agreement and to consummate the transactions provided for herein; this Agreement has been duly authorized, executed and delivered by the Company and JHC Limited;
(k) None of the Company's execution or delivery of this Agreement, its performance hereof, and its consummation of the transactions contemplated herein conflicts with or results in any breach or violation of any of the terms or provisions of, or constitutes a default under, the terms of the certificate of incorporation or by-laws of the Company; the terms of any indenture, mortgage, deed of trust, voting trust agreement, stockholder's agreement, note agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party filed as an exhibit to the Registration Statement; any statute, rule or regulation of any state or Federal regulatory body or administrative agency or other governmental agency or body, or to such counsel’s attention 's knowledge, any judgment, order or decree of any state or Federal government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, having such jurisdiction over the Company, any of its subsidiaries or their respective properties, except that would lead such counsel with regard to believe that this paragraph (except l), no opinion is expressed as to state securities or Blue Sky laws or any rules or regulations thereunder;
(l) No consent, approval, authorization or order of any state or Federal court, regulatory body or administrative agency or other state or Federal governmental agency or body, has been or is required for the financial statements Company's performance of this Agreement or the consummation of the transactions contemplated hereby, except (1) such as have been obtained under the Act or may be required under state securities or Blue Sky laws in connection with the purchase and schedules distribution by the Underwriters of the Shares, it being understood that no opinion is expressed with respect to state securities or Blue Sky laws and (2) such as have been made or obtained under the Act;
(m) All holders of securities of the Company who, to such counsel's knowledge, have rights to cause the Company to register shares of Common Stock or other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part securities because of the filing of the Registration Statement at by the Company have waived such rights, such rights have expired by reason of lapse of time it became effective, and if an amendment following notification of the Company's intent to file the Registration Statement has or such rights have been filed by satisfied in accordance with their respective terms, in each case except as disclosed in the Company Prospectus;
(n) No transfer taxes under the laws of the State of New York are required to be paid in connection with the Commission subsequent sale or delivery to the Underwriters of the Firm Shares or the Additional Shares which have not been paid; In addition, such datecounsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent accountants for the Company, representatives of the Underwriters and representatives of counsel for the Underwriters, at which conferences the time contents of the most recent Registration Statement and the Prospectuses and related matters were discussed and, although such filing prior counsel may state that it has not independently checked or verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectuses (other than with respect to the time opinions set forth in paragraph (g) above, on the basis of issuance the foregoing (relying as to materiality upon discussions with, and representations and opinions of, officers and other representatives of this opinionthe Company), such counsel has no reason to believe that the Registration Statement, on the effective date thereof contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleadingmisleading or that the Prospectus, and (ii) on the Pricing Disclosure Material at date thereof or on the Pricing Effective Time Closing Date, contained any or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleadingmisleading (it being understood that such counsel need express no view with respect to the financial statements and notes thereto, the schedules and other data or information of an accounting, financial or statistical nature included in the Registration Statement or the Prospectus). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and or other written statements of public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation law of the State of Delaware, solely on the opinions of local counsel, and, as to matters relating to JHC Limited or any of the Selling Stockholders, solely on opinions of counsel to JHC Limited and such Selling Stockholders. References to the Registration Statement and the Prospectus in such opinion shall include any amendment or supplement thereto at the date of such opinion. OPINION OF COUNSEL TO EACH SELLING STOCKHOLDER
(a) Each Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and has good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever;
(b) Each Selling Stockholder has full legal right, power and authority, and (iii) all authorization and approval required by law, to enter into this Agreement and the Prospectus as Custody Agreement and the Power of its date Attorney of such Selling Stockholder and as of to sell, assign, transfer and deliver the Closing Date contained any untrue statement of a material fact or omitted Shares to state a material fact necessary in order to make the statements therein, be sold by such Selling Stockholder in the light of the circumstances under which they were made, not misleading.manner provided herein and therein;
(Ic) The shares Custody Agreement of Preferred Stock being delivered to the Underwriters at the Closing Date have each Selling Stockholder has been duly authorized authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms;
(d) The Power of Attorney of each Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, when issued pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and delivered as provided deliver on such Selling Stockholder's behalf this Agreement and any other document they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(e) Upon delivery of and payment for the Shares to be sold by each Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended pass to the Closing DateUnderwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever; and The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of each Selling Stockholder by such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby do not (A) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (B) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument known to such counsel to which such Selling Stockholder is a party or by which any property of such Selling Stockholder is bound or (C) violate or conflict with any applicable law or any rule, regulation, or to such counsel's knowledge, any judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
Appears in 1 contract
Opinion of Counsel to the Company. The opinion On the Closing Date, the Underwriters shall have received the opinion, dated the Closing Date, of Associate General CounselPalmxx & Xodge LLP, Corporate Treasury of counsel to the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thatset forth below:
(i) Each of the Company and each of its Subsidiaries (A) is a duly incorporated and validly existing corporation in good standing under the laws 24-- 25 of its jurisdiction of incorporation with full power and authority (corporate and other) to own or lease its properties and to conduct its business as described in the Prospectus, and (B) is duly qualified to do business as a foreign corporation in each jurisdiction (x) in which the conduct of its business requires such qualification (except for those jurisdictions in which the failure so to qualify can be cured without having a Material Adverse Effect) and (y) in which it owns or leases real property;
(ii) The Company has authorized capital stock as set forth in the Prospectus; the securities of the Company conform in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly incorporated authorized and validly issued by the Company, are fully paid and nonassessable, and to the best of such counsel's knowledge, are free of any preemptive or other rights to subscribe for any of the Shares; the Company has duly authorized the issuance and sale of the Shares to be sold by it hereunder; such Shares, when issued by the Company and paid for in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; and the Shares have been duly authorized for quotation on the Nasdaq National Market, subject to official notice of issuance;
(iii) The Registration Statement is validly existing effective under the laws Securities Act; any required filing of the State Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and to the best of Delaware.such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best knowledge of such counsel, are threatened or contemplated under the Securities Act; the Registration Statement and the Prospectus and, if any, each amendment and supplement thereto (except for the financial statements, schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), as of their respective effective or issue dates, appear to have been appropriately responsive in all material respects to the requirements of the Securities Act and the Rules and Regulations; the descriptions contained and summarized in the Registration Statement and the Prospectus of written and/or other material contracts to which the Company or its Subsidiaries are parties, are accurate and fairly represent in all material respects the information required to be shown by Form S-1; to the best knowledge of such counsel, there are no contracts or documents which are required by the Securities Act to be described in the 25-- 26 Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required; to the best knowledge of such counsel, there is not pending or threatened against the Company any action, suit, proceeding or investigation before or by any court, regulatory body, or administrative agency or any other governmental agency or body, domestic or foreign, of a character required to be disclosed in the Registration Statement or the Prospectus which is not so disclosed therein; and the statements set forth under the headings "Business-Legal Proceedings" in the Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, provide an accurate summary of such legal matters, documents and proceedings;
(Biv) This The Company has full legal right, power, and authority to enter into this Agreement and to consummate the transactions provided for herein; this Agreement has been duly authorized, executed and delivered by the Company.
(C) Neither the ; and this Agreement, assuming due authorization, execution and delivery by each other party hereto, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws. None of the Company's execution or delivery of this Agreement nor the issuance and sale Agreement, its performance hereof or its consummation of the Preferred Stock by transactions contemplated herein, will conflict with or result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any material lien, charge or encumbrance upon, any property or assets of the Company as provided herein will pursuant to (ia) contravene the certificate terms of incorporation the Charter or by-laws of the Company or (ii) result in any violation of any of its Subsidiaries; (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (Bb) the terms of any indenture, mortgage or other executed agreement or instrument known filed as an Exhibit to such counsel by the Registration Statement to which the Company or any of its subsidiaries Subsidiaries is a party or by which it or any of its Subsidiaries is or may be bound or to which any of their respective properties may be subject; (c) any statute, rule or regulation of any regulatory body or administrative agency or other governmental agency or body, domestic or foreign, that is normally applicable to transactions of the type contemplated by this Agreement; or (d) any judgment, decree or order, known to such counsel after reasonable investigation, of any court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having such jurisdiction over the Company or any of its Subsidiaries or any of their respective activities or properties; and which is material to no consent, approval, authorization or order of any court,
(v) To the best of such counsel's knowledge, the Company and its subsidiaries taken Subsidiaries are not in violation of any federal, state or local statute, administrative regulation or other law of general application to corporations in the conduct of their businesses, which violation could have a Material Adverse Effect; and each of the Company and its Subsidiaries has obtained all licenses, permits, franchises, certificates and other authorizations from state, federal and other regulatory authorities as are necessary or required for the ownership, leasing and operation of its properties and the conduct of its business as presently conducted and as contemplated in the Prospectus, except when a whole.failure to obtain such authorizations would not have a Material Adverse Effect;
(Dvi) The statements contained issued shares of capital stock of each of the Subsidiaries have been duly authorized validly issued, are fully paid and nonassessable and, except as otherwise set forth in the Preliminary Prospectus (excluding Prospectus, are owned directly by the Base Prospectus) Company, or indirectly by a Subsidiary, free and clear of any perfected security interests or, to the best knowledge of such counsel, any other liens, encumbrances, claims or security interests; to the best of such counsel's knowledge, no Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary's capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary's property or assets to the Company or any other Subsidiary of the Company, except as described in or contemplated by the Prospectus (excluding or, if the Base Prospectus is not in existence, the most recent Preliminary Prospectus); and
(vii) under the captions “Description Each of the Preferred Stock” Company and “Underwriting” insofar its Subsidiaries owns, or is licensed or otherwise has legally enforceable rights to use, the tangible and intangible assets used in, or necessary for, the conduct of its business as described in the Prospectus. To the best of such statements purport counsel's knowledge, except as described in the Prospectus, no claims have been asserted against the Company or any of its Subsidiaries by any person to summarize certain provisions the use of documents (any such assets or provisions thereof) challenging or statutes (questioning the validity or provisions thereof) referred to thereineffectiveness of any such assets. The use, fairly present in 27-- 28 connection with the matters referred to therein.
(E) Each document incorporated by reference in each business and operations of the Registration StatementCompany and its Subsidiaries, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which of such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act andassets does not, to the best of such counsel’s 's knowledge, no stop order suspending infringe on the effectiveness rights of any person. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has been issued under participated in conferences with officers and representatives of the 1933 Act or proceedings therefor initiated or threatened by Company, representatives of the Commission.
(G) The Company's independent public accountants, and with your representatives and your counsel at which conferences such counsel made inquiries of such officers, representatives and accountants and discussed the contents of the Registration Statement at the Effective Time and the Prospectus and (without taking any supplements further action to verify independently the statements made in the Registration Statement and amendments thereto the Prospectus and, except as of their respective effective or issue dates (except stated in the foregoing opinion, without assuming responsibility for the financial statements and schedules and other financial and statistical material contained accuracy, completeness or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, fairness of such counsel need not express any opinionstatements) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing nothing has come to such counsel’s 's attention that would lead causes such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of either the Registration Statement at or the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an Prospectus contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under in which they were made, not misleadingmisleading (it being understood that such counsel need not express any opinion with respect to the financial statements, schedules and other financial and statistical data included in the Registration Statement or the Prospectus). In rendering such opinion, such counsel may rely on the following: (A) as to matters involving the application of laws other than the federal laws of the United States and the law of the jurisdiction in which they are admitted, to the extent such counsel deem proper and to the extent specified in such opinion, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel familiar with applicable laws; (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and certificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company; and (iiiC) if written confirmation of the Commission is not available at the time such opinion is rendered, upon the oral representations of members of the Commission's staff with respect to the Registration Statement or any amendment thereto having become effective and the lack of issuance of a stop order or institution or contemplation of proceedings for that purpose. References to the Registration Statement and the Prospectus as of its date and as of the Closing Date contained in this paragraph (d) shall include any untrue statement of a material fact amendment or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters supplement thereto at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate date of incorporation, as amended to the Closing Datesuch opinion.
Appears in 1 contract
Samples: Underwriting Agreement (Dyax Corp)
Opinion of Counsel to the Company. The Investors shall have received ------- -- ------- -- --- ------- an opinion of Associate General Counsel, Corporate Treasury of counsel to the Company, or other counsel satisfactory Brown, Rudnick, Freed & Gesmer, addressed to the UnderwritersInvestors, in form and substance reasonably satisfactory to the Underwriters Investors and counsel for dated the UnderwritersClosing Date, substantially to the effect thatfollowing effect:
(Aa) This Agreement, the Articles of Amendment and the certificates representing the Shares to be purchased at the Closing have been duly and validly authorized, executed, and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights, and except that no opinion need by expressed with respect to the availability of equitable remedies or the enforceability of Section 9.07 hereof (to the extent that the Company agrees to indemnify directors, officers and controlling persons for liabilities arising under the Securities Act);
(b) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Company at or prior to the Closing in connection with the transactions contemplated by this Agreement have been duly and validly taken;
(c) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts and has all requisite corporate power and authority to own its properties and conduct its business;
(Bd) This The Company has secured all governmental consents, approvals, authorizations and, to the best knowledge of such counsel, has obtained such other consents, approvals and authorizations, and has complied with all similar requirements prescribed by any law, rule or regulation which must be obtained or satisfied by the Company and which are necessary for the consummation of the transactions contemplated by this Agreement at or prior to the Closing;
(e) The Company has the corporate right, power and authority to enter into this Agreement and to issue, sell and deliver the Shares and to consummate all other transactions contemplated hereby;
(f) The outstanding shares of capital stock of the Company have been duly authorizedauthorized and validly issued and are fully paid and nonassessable, executed and delivered by and, to the best knowledge of such counsel, there are no outstanding options for the purchase of, or any agreements providing for the issuance of (contingent or otherwise), or any commitments or claims of any character relat-ing to, any such capital stock or any shares of stock or securi-ties convertible into or exchangeable for any such capital stock;
(g) The Company is not in violation of its Articles of Organization, as amended, or bylaws or, to the best knowledge of such counsel, in default in the performance of any material obligation, agreement or condition contained in any bond, debenture or other evidence of indebtedness or any indenture or loan agreement of the Company.
(C) . Neither the sale of the Shares, nor the execution and delivery of this Agreement nor Agreement, the issuance and sale consummation of the Preferred Stock by transactions herein contemplated and the Company as provided herein will compliance with the terms of this Agreement do, or will, (i) contravene the certificate of incorporation conflict with or by-laws of the Company or (ii) result in any violation a breach of any of (A) the terms or provisions of, or constitute a default under, the Articles of any lawOrganization, rule as amended, or regulation the bylaws of the State Company, or, to the best knowledge of New Yorksuch counsel, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any material indenture, mortgage or other agreement or instrument known of which they have knowledge to such counsel by which the Company is as party or by which it or any of its subsidiaries is bound properties are bound, or (ii) to the best knowledge of such counsel, result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company;
(h) Holders of the shares of Series A Preferred and Series B Preferred have the respective rights, preference and privileges set forth in the Articles of Amendment, which is material have been duly and properly adopted and filed in all places where they are required to be filed;
(i) Based on the accuracy of the representations of the Company and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material Investors contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly the offer, issuance and validly issuedsale of the Shares to the Investors pursuant to this Agreement are exempt from registration under the Securities Act of 1933, fully paid and nonassessableas amended; and
(j) To the best knowledge of such counsel, and will have the rights set forth in there is no litigation or governmental proceeding or investigation pending or threatened against the Company’s certificate of incorporation, as amended relating to the Closing Datepresent or proposed business, property or assets of the Company. In rendering such opinion, such counsel may rely to a reasonable extent upon certificates of public officials and upon certificates of officers of the Company as to matters of fact. Such opinion may be based on existing laws, rules and regulations.
Appears in 1 contract
Samples: Series a and Series B Preferred Stock Purchase Agreement (Vivid Technologies Inc)
Opinion of Counsel to the Company. The opinion On the Closing Date, the Underwriters shall have received the opinion, dated the Closing Date, of Associate General CounselXxxxx, Corporate Treasury of Xxxxx & Xxxxx, counsel to the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thatset forth below:
(i) Each of the Company and each of its domestic Subsidiaries (A) is a duly incorporated and validly existing corporation in good standing under the laws of its jurisdiction of incorporation with full corporate power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and (B) to the best of such counsel's knowledge, is duly qualified to do business as a foreign corporation in each jurisdiction (x) in which the conduct of its business requires such qualification (except for those jurisdictions in which the failure so to qualify can be cured without having a Material Adverse Effect) and (y) in which it owns or leases real property;
(ii) The Company has authorized capital stock as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding Common Shares have been duly incorporated authorized and validly issued by the Company, are fully paid and nonassessable, and to the best of such counsel's knowledge, are free of any preemptive or other rights to subscribe for any of the Shares; the Company has duly authorized the issuance and sale of the Shares to be sold by it hereunder; such Shares, when issued by the Company and paid for in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; and the Shares have been duly authorized for quotation on the Nasdaq NMS;
(iii) The Registration Statement is validly existing effective under the laws 1933 Act; any required filing of the State Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and to the best of Delaware.such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or are pending or threatened or contemplated under the 1933 Act; the Registration Statement and the Prospectus and, if any, each amendment and supplement thereto (except for the financial statements, schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; the descriptions contained and summarized in the Registration Statement and the Prospectus of written and/or other material contracts to which the Company or its Subsidiaries are parties and which are filed as exhibits to the Registration Statement, are accurate and fairly represent in all material respects the information required to be shown by Form S-1; to the best knowledge of such counsel, there are no contracts or documents which are required by the 1933 Act to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required; and, to the best knowledge of such counsel, there is not pending or threatened against the Company any action, suit, proceeding or investigation before or by any court, regulatory body, or administrative agency or any other governmental agency or body, domestic or foreign, of a character required to be disclosed in the Registration Statement or the Prospectus which is not so disclosed therein;
(Biv) This The Company has the corporate power and authority to enter into this Agreement and to consummate the transactions provided for herein; this Agreement has been duly authorized, executed and delivered by the Company.
(C) Neither the ; and this Agreement, assuming due authorization, execution and delivery by each other party hereto, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws. None of the Company's execution or delivery of this Agreement nor the issuance and sale Agreement, its performance hereof or its consummation of the Preferred Stock by transactions contemplated herein, will conflict with or result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any material lien, charge or encumbrance upon, any property or assets of the Company as provided herein will (i) contravene pursuant to the terms of the certificate or articles of incorporation or by-laws bylaws of the Company or (ii) result in any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) its Subsidiaries; the terms of any indenture, mortgage or other executed agreement or instrument known filed as an exhibit to such counsel by the Registration Statement to which the Company or any of its subsidiaries Subsidiaries is a party or by which it or any of its Subsidiaries is or may be bound and or to which any of their respective properties may be subject; any statute, rule or regulation of any domestic regulatory body or administrative agency or other domestic governmental agency or body that is material normally applicable to transactions of the type contemplated by this Agreement; or any judgment, decree or order, known to such counsel after reasonable investigation, of any domestic court, regulatory body or administrative agency or other domestic governmental agency or body having such jurisdiction over the Company or any of its Subsidiaries or any of their respective activities or properties; and its subsidiaries taken as a whole.
(D) The statements contained in no consent, approval, authorization or order of any domestic court, regulatory body or administrative agency or other domestic governmental agency or body has been or is required for the Preliminary Prospectus (excluding Company's performance of this Agreement or the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description consummation of the Preferred Stock” and “Underwriting” insofar transactions contemplated hereby, except such as such statements purport to summarize certain provisions of documents (have been obtained or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued may be obtained under the 1933 Act or proceedings therefor initiated may be required under state securities or threatened Blue Sky laws in connection with the purchase and distribution by the Commission.Underwriters of the Shares; and
(Gv) The issued shares of capital stock of each of the domestic Subsidiaries have been duly authorized validly issued, are fully paid and nonassessable and are owned by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other liens, encumbrances, claims or security interests. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has participated in conferences with officers and representatives of the Company, representatives of the Company's independent public accountants, and with your representatives and your counsel at which conferences such counsel made inquiries of such officers, representatives and accountants and discussed the Effective Time contents of the Registration Statement and the Prospectus and (without taking any supplements further action to verify independently the statements made in the Registration Statement and amendments thereto the Prospectus and, except as of their respective effective or issue dates (except stated in the foregoing opinion, without assuming responsibility for the financial statements and schedules and other financial and statistical material contained accuracy, completeness or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, fairness of such counsel need not express any opinionstatements) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing nothing has come to such counsel’s 's attention that would lead causes such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of either the Registration Statement at or the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an Prospectus contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading (it being understood that such counsel need not express any opinion with respect to the financial statements, schedules and other financial and statistical data included in the Registration Statement or the Prospectus). In rendering such opinion, such counsel may rely on the following: (A) as to matters involving the application of laws other than the federal laws of the United States and the law of the jurisdiction in which they are admitted, to the extent such counsel deem proper and to the extent specified in such opinion, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel familiar with applicable laws; (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and certificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company; and (iiC) if written confirmation of the Pricing Disclosure Material Commission is not available at the Pricing Effective Time contained time such opinion is rendered, upon the oral representations of members of the Commission's staff with respect to the Registration Statement or any untrue statement amendment thereto having become effective and the lack of issuance of a material fact stop order or omitted institution or contemplation of proceedings for that purpose. References to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Registration Statement and (iii) the Prospectus as of its date and as of the Closing Date contained in this paragraph (d) shall include any untrue statement of a material fact amendment or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters supplement thereto at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate date of incorporation, as amended to the Closing Datesuch opinion.
Appears in 1 contract
Samples: Underwriting Agreement (Vysis Inc)
Opinion of Counsel to the Company. The Investors shall have received --------------------------------- an opinion of Associate General CounselXxxxxx Xxxxx Xxxxxxx & Farrier, Corporate Treasury of L.L.P., counsel to the Company, or other counsel satisfactory based upon such counsel's best knowledge, addressed to the UnderwritersPurchaser, dated such date, substantially in the form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thatas set forth below:
(A1) The Company has been is a corporation duly incorporated and is organized, validly existing and in good standing under the laws of the State of Delaware., and that it has full corporate power and authority to execute the Agreement and to consummate the transactions contemplated thereby;
(B2) This The Agreement has been duly authorized, authorized by the Company and its Board of Directors and duly executed and delivered by an authorized officer of the Company and constitutes a legal, valid, and binding obligation of the Company and is enforceable in accordance with its terms, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors;
3) The offer, issuance, sale and delivery of the Shares in conformity with the terms of the Agreement does not violate any provision of the Company.'s Certificate of Incorporation or Bylaws;
(C4) Neither To such counsel's knowledge, other than the conditions to closing and the matters set forth on Schedule 2.4 hereto, no order, authorization, ------------ consent or approval of, or registration, declaration or filing with any state or federal governmental authority or agency is required in connection with the execution and delivery of this the Agreement nor or the offer, sale or issuance and sale of the Preferred Stock Shares by the Company or the consummation by the Company of the transactions contemplated by the Agreement.
5) To such counsel's knowledge, except as provided herein otherwise set forth in the Disclosure Documents and Schedule 2.7, neither Sunbelt nor any of its ------------ subsidiaries is a party to any pending or threatened action, suit, proceeding or investigation before any court or governmental agency.
6) Except as set forth on Schedule 2.4 hereto, neither the execution, ------------ delivery or performance of the Agreement nor compliance by the Company with all provisions thereof, nor consummation by the Company of the transactions contemplated thereby conflicts or will (i) contravene conflict with or constitutes or will constitute a breach of, or a default under, the certificate Certificate of incorporation Incorporation or by-laws bylaws of the Company, or, to such counsel's knowledge, any material contract to which it is a party, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or (ii) under any such material contract nor will any such action result in any violation of any of (A) the terms existing Delaware or provisions of any Federal law, rule or rule, regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than assuming compliance with respect to all applicable state securities or and Blue Sky laws), as to which such counsel need not express or any opinion) ruling, judgment, injunction, order or (B) the terms decree of any indenture, mortgage court or other agreement government entity or instrument instrumentality known to such counsel by which counsel, and applicable to the Company or any of its subsidiaries is bound properties;
7) To such counsel's knowledge, without undertaking any independent investigation, the authorized, issued and which is material to outstanding capital stock of the Company and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part is as set forth in Section 2.2 of the Registration Statement at the time it became effectiveAgreement, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadinghas been duly and validly authorized and issued and are fully paid and nonassessable, and (iii) the Prospectus as has not been issued in violation of its date and as of the Closing Date contained any untrue statement of a material fact preemptive right, co-sale right, or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingregistration right.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when 8) Once issued and delivered as provided for the consideration stated in this the Agreement, will the Shares shall be duly and validly issued, fully paid and nonassessablenon-assessable. To such counsel's knowledge, and will have without undertaking any independent investigation, there are no outstanding subscriptions, options (other than employee stock options), warrants, rights or other written agreements obligating the rights Company to issue or sell any shares of Common or Preferred Stock of the Company other than as set forth in the Company’s certificate of incorporation, as amended to the Closing Date.on Schedule 2.2. ------------
Appears in 1 contract
Samples: Series a Cumulative Convertible Preferred Stock Purchase Agreement (Duoos Timothy R)
Opinion of Counsel to the Company. The Investors shall have received --------------------------------- an opinion of Associate General CounselXxxxxx Xxxxx Xxxxxxx & Farrier, Corporate Treasury of L.L.P., counsel to the Company, or other counsel satisfactory based upon such counsel's best knowledge, addressed to the UnderwritersPurchaser, dated such date, substantially in the form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thatas set forth below:
(A1) The Company has been is a corporation duly incorporated and is organized, validly existing and in good standing under the laws of the State of Delaware., and that it has full corporate power and authority to execute the Agreement and to consummate the transactions contemplated thereby;
(B2) This The Agreement has been duly authorized, authorized by the Company and its Board of Directors and duly executed and delivered by an authorized officer of the Company and constitutes a legal, valid, and binding obligation of the Company and is enforceable in accordance with its terms, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors;
3) The offer, issuance, sale and delivery of the Shares in conformity with the terms of the Agreement does not violate any provision of the Company.'s Certificate of Incorporation or Bylaws;
(C4) Neither To such counsel's knowledge, other than the conditions to closing and the matters set forth on Schedule 2.4 hereto, no order, authorization, ------------ consent or approval of; or registration, declaration or filing with any state or federal governmental authority or agency is required in connection with the execution and delivery of this the Agreement nor or the offer, sale or issuance and sale of the Preferred Stock Shares by the Company or the consummation by the Company of the transactions contemplated by the Agreement.
5) To such counsel's knowledge, except as provided herein otherwise set forth in the Disclosure Documents and Schedule 2.7, neither Sunbelt nor any of its ------------ subsidiaries is a party to any pending or threatened action, suit, proceeding or investigation before any court or governmental agency.
6) Except as set forth on Schedule 2.4 hereto, neither the execution, ------------ delivery or performance of the Agreement nor compliance by the Company with all provisions thereof; nor consummation by the Company of the transactions contemplated thereby conflicts or will (i) contravene conflict with or constitutes or will constitute a breach of; or a default under, the certificate Certificate of incorporation Incorporation or by-laws bylaws of the Company, or, to such counsel's knowledge, any material contract to which it is a party, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or (ii) under any such material contract nor will any such action result in any violation of any of (A) the terms existing Delaware or provisions of any Federal law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than assuming compliance with respect to all applicable state securities or and Blue Sky laws), as to which such counsel need not express or any opinion) ruling, judgment, injunction, order or (B) the terms decree of any indenture, mortgage court or other agreement government entity or instrument instrumentality known to such counsel by which counsel, and applicable to the Company or any of its subsidiaries is bound properties;
7) To such counsel's knowledge, without undertaking any independent investigation, the authorized, issued and which is material to outstanding capital stock of the Company and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part is as set forth in Section 2.2 of the Registration Statement at the time it became effectiveAgreement, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadinghas been duly and validly authorized and issued and are fully paid and nonassessable, and (iii) the Prospectus as has not been issued in violation of its date and as of the Closing Date contained any untrue statement of a material fact preemptive right, co-sale right, or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingregistration right.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when 8) Once issued and delivered as provided for the consideration stated in this the Agreement, will the Shares shall be duly and validly issued, fully paid and nonassessablenon- assessable. To such counsel's knowledge, and will have without undertaking any independent investigation, there are no outstanding subscriptions, options (other than employee stock options), warrants, rights or other written agreements obligating the rights Company to issue or sell any shares of Common or Preferred Stock of the Company other than as set forth in the Company’s certificate of incorporation, as amended to the Closing Date.on Schedule 2.2. ------------
Appears in 1 contract
Samples: Series a Cumulative Convertible Preferred Stock Purchase Agreement (Sunbelt Nursery Group Inc)
Opinion of Counsel to the Company. The opinion of Associate General CounselSullivan & Cromwell LLP, Corporate Treasury of counsel to the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thatefxxxx xxxt:
(Ai) The Company is duly registered as a bank holding company under the Bank Holding Company Act.
(ii) The Indenture has been duly incorporated authorized, executed and is validly existing delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iii) The series of Notes has been duly authorized and established in conformity with the Indenture and, when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with the Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with the Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date hereof or such Settlement Date, as the case may be, under the Federal laws of the United States and the laws of the State of DelawareNew York for the issuance, sale and delivery of the Notes by the Company to or through the Agents in accordance with this Agreement have been obtained or made; provided, however, that such counsel need express no opinion with respect to state securities laws.
(Bv) This Agreement has and, if applicable, such Terms Agreement have each been duly authorized, executed and delivered by the Company.
(Cvi) Neither the The execution and delivery of this Agreement nor the issuance and sale of the Preferred Stock by the Company as provided herein of the Indenture and this Agreement and, if applicable, such Terms Agreement do not, and the preparation, execution and issuance of each particular Note in accordance with the Indenture, the sale by the Company of such Note in accordance with this Agreement and, if applicable, such Terms Agreement and the performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement and the Notes will not (ia) contravene violate the certificate of incorporation or by-laws of the Company Company, in each case as in effect at the date of such opinion, or (iib) result in violate any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal existing Federal law of the United States applicable to the Company; provided, however, that, for the purposes of America to which the Company is subject this paragraph (other than vi), such counsel need express no opinion with respect to applicable the Federal or state securities or Blue Sky laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and related laws, and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specially designated nationals and organizations; provided, further, that insofar as to which performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement, and the Notes is concerned, such counsel need not express any opinion) no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a wholeaffecting creditors' rights.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(Fvii) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s 's knowledge, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or and (b) no proceedings therefor have been initiated or threatened by the CommissionSEC.
(Gviii) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except As counsel for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each caseCompany, such counsel need not express reviewed the Registration Statement and the Prospectus, and any opinion) comply amendment or supplement thereto, participated in discussions with the Agents' representatives and those of the Company and its independent registered public accounting firm, and advised the Company as to form the requirements of the 1933 Act and the applicable 1933 Act Regulations, and on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of their understanding of the applicable law (including the requirements of Form S-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the 1933 Act, they confirm to the Agents that, in their opinion, each part of the Registration Statement, when such part became effective, and the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, appeared on their face to be appropriately responsive, in all material respects with relevant to the offering of the Notes, to the requirements of the 1933 Act, the 1939 Act and the applicable rules and regulations of the Commission SEC thereunder.
(H) Nothing , and nothing has come to their attention in the course of such counsel’s attention review that would lead such counsel has caused them to believe that (except for that, insofar as relevant to the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefromoffering of the Notes, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it Statement, when such part became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or that, and (ii) insofar as relevant to the Pricing Disclosure Material at offering of the Pricing Effective Time Notes, the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, or, if applicable, the applicable Settlement Date, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may say that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, except (i) for those made under the captions "Description of Debt Securities We May Offer" and "Plan of Distribution" in the Prospectus, under the captions "Description of Notes We May Offer" and "Supplemental Plan of Distribution" in the prospectus supplement forming a part of the Prospectus and under the captions "Description of the Notes" and "Underwriting," or similar or comparable captions, in any pricing supplement forming a part of the Prospectus, insofar as they relate to provisions therein described, of the Notes, the Indenture and this Agreement and, if applicable, such Terms Agreement and (iiiii) the Prospectus as of its date and as accuracy of the Closing Date descriptions of the Federal laws of the United States contained in the prospectus supplement forming a part of the Prospectus under the caption "United States Taxation," and that they do not express any untrue opinion or belief as to the financial statements or other financial data contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or as to the statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light eligibility of the circumstances Trustee under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered the Indenture. Such counsel may also say that their letter is furnished to the Underwriters at Agents by them as counsel for the Closing Date have been duly authorized and, when issued Company and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have is solely for the rights set forth in benefit of the Company’s certificate of incorporationAgents. Such counsel may base their opinions, as amended to certain matters, on certificates of officers of the Company and may rely as to all matters relating to the Closing Datelaws of the Commonwealth of Puerto Rico upon the opinion of Brunilda Santos de Alvarez, Esq., delivered pursuant to Section 5(a)(0) xxxxxx.
Appears in 1 contract
Samples: Distribution Agreement (Popular Inc)
Opinion of Counsel to the Company. The opinion Except as disclosed in the Company’s Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2013 and the Company’s Report on Form 10-Q filed with the SEC for the fiscal quarter ended March 29, 2014, I have no knowledge (after reasonable inquiry) of Associate General Counselany legal or arbitral proceedings, Corporate Treasury or any proceedings by or before any governmental or regulatory authority or agency, pending or threatened against or affecting any Company or any of the Company, ’s Subsidiaries or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that:
(A) The Company has been duly incorporated and is validly existing under the laws of the State of Delaware.
(B) This Agreement has been duly authorized, executed and delivered by the Company.
(C) Neither the execution and delivery of this Agreement nor the issuance and sale of the Preferred Stock by the Company as provided herein will (i) contravene the certificate of incorporation or by-laws of the Company or (ii) result in any violation of any of (A) their respective Properties that, if adversely determined, are likely to have a Material Adverse Effect. The foregoing opinions are limited to matters involving the terms or provisions of any law, rule or regulation of the State of New York, the corporate Federal laws of the State of Delaware or the federal law of the United States of America to which America, the Company is subject (other than with respect to applicable securities or Blue Sky lawsDelaware General Corporation Law and the law of the State of Illinois, as to which such counsel need and I do not express any opinion) or (B) opinion as to the terms laws of any indentureother jurisdiction. At the request of my client, mortgage or other agreement or instrument known this opinion letter is provided to such you by me in my capacity as counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and, except as permitted below, may not be relied upon in any manner by any Person for any purpose other than in connection with the transactions contemplated by the Credit Agreement and its subsidiaries taken as may not be disclosed, quoted, filed with a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (governmental agency or provisions thereof) or statutes (or provisions thereof) otherwise referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to whichwithout, in each caseinstance, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations my prior written consent except that you may furnish copies of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) this opinion letter: (i) each part to your accountants and counsel; (ii) to bank or other regulatory examiners; and (iii) pursuant to judicial process or government order or requirement of applicable law or regulation. At your request, I hereby consent to reliance hereon by any future assignee of any interest of an addressee hereof in the loans under the Credit Agreement pursuant to an assignment that is made in accordance with the express provisions of Section 11.05 of the Registration Statement at Credit Agreement, on the time it became effectivecondition and understanding that: (i) this letter speaks only as of the date hereof; (ii) I have no responsibility or obligation to update this letter, to consider its applicability or correctness to anyone other than its addressees, or to take into account changes in law, facts or any other developments of which I may later become aware; (iii) any such reliance by a future assignee must be actual and if an amendment to reasonable under the Registration Statement has been filed by the Company with the Commission subsequent to such date, circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the most recent assignee at such filing prior time; and (iv) in furtherance and not in limitation of the foregoing, my consent to such reliance shall in no event constitute a reissuance of the opinions expressed herein or otherwise extend any statute of limitation period applicable hereto on the date hereof. To the Banks party to the time Credit Agreement referred to below and JPMorgan Chase Bank, N.A., as Administrative Agent Ladies and Gentlemen: We have acted as special counsel to Motorola Solutions, Inc., a Delaware corporation (the “Company”) in connection with (i) the Revolving Credit Agreement (the “Credit Agreement”) dated as of issuance of this opinionMay [ ], contained an untrue statement of a material fact or omitted to state a material fact required 2014 between the Company, the lenders named therein and JPMorgan Chase Bank, N.A. as Administrative Agent, providing for loans to be stated therein or necessary made by said lenders to make the statements therein Company in an aggregate principal amount initially not misleading, to exceed $2,000,000,000 and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted various other agreements and instruments referred to state a material fact necessary in order to make the statements therein, in the light next following paragraph. Terms defined in the Credit Agreement are used herein as defined therein. This opinion letter is being delivered pursuant to Section 6.01(e)(ii) of the circumstances under which they were madeCredit Agreement. In rendering the opinions expressed below, not misleadingwe have examined the following agreements, instruments and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Date.other documents:
Appears in 1 contract
Samples: Revolving Credit Agreement (Motorola Solutions, Inc.)
Opinion of Counsel to the Company. The opinion of Associate General CounselSullivan & Cromwell LLP, Corporate Treasury of counsel to the Company, or other counsel satisfactory to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect thateffexx xxxx:
(Ai) The Company is duly registered as a bank holding company under the Bank Holding Company Act.
(ii) The Indenture has been duly incorporated authorized, executed and is validly existing delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iii) The series of Notes has been duly authorized and established in conformity with the Indenture and, when the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with the Indenture and such Note has been duly prepared, executed, authenticated and issued in accordance with the Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date hereof or such Settlement Date, as the case may be, under the Federal laws of the United States and the laws of the State of DelawareNew York for the issuance, sale and delivery of the Notes by the Company to or through the Agents in accordance with this Agreement have been obtained or made; provided, however, that such counsel need express no opinion with respect to state securities laws.
(Bv) This Agreement has and, if applicable, such Terms Agreement have each been duly authorized, executed and delivered by the Company.
(Cvi) Neither the The execution and delivery of this Agreement nor the issuance and sale of the Preferred Stock by the Company as provided herein of the Indenture and this Agreement and, if applicable, such Terms Agreement do not, and the preparation, execution and issuance of each particular Note in accordance with the Indenture, the sale by the Company of such Note in accordance with this Agreement and, if applicable, such Terms Agreement and the performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement and the Notes will not (ia) contravene violate the certificate of incorporation or by-laws of the Company Company, in each case as in effect at the date of such opinion, or (iib) result in violate any violation of any of (A) the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal existing Federal law of the United States applicable to the Company; provided, however, that, for the purposes of America to which the Company is subject this paragraph (other than vi), such counsel need express no opinion with respect to applicable the Federal or state securities or Blue Sky laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement Income Security Act of 1974 and related laws, and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specially designated nationals and organizations; provided, further, that insofar as to which performance by the Company of its obligations under the Indenture, this Agreement and, if applicable, such Terms Agreement, and the Notes is concerned, such counsel need not express any opinion) no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a wholeaffecting creditors' rights.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(Fvii) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s 's knowledge, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or and (b) no proceedings therefor have been initiated or threatened by the CommissionSEC.
(Gviii) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except As counsel for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each caseCompany, such counsel need not express reviewed the Registration Statement and the Prospectus, and any opinion) comply amendment or supplement thereto, participated in discussions with the Agents' representatives and those of the Company and its independent accountants, and advised the Company as to form the requirements of the 1933 Act and the applicable 1933 Act Regulations, and on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of their understanding of the applicable law (including the requirements of Form S-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the 1933 Act, they confirm to the Agents that, in their opinion, each part of the Registration Statement, when such part became effective, and the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, appeared on their face to be appropriately responsive, in all material respects with relevant to the offering of the Notes, to the requirements of the 1933 Act, the 1939 Act and the applicable rules and regulations of the Commission SEC thereunder.
(H) Nothing , and nothing has come to their attention in the course of such counsel’s attention review that would lead such counsel has caused them to believe that (except for that, insofar as relevant to the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefromoffering of the Notes, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it Statement, when such part became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or that, and (ii) insofar as relevant to the Pricing Disclosure Material at offering of the Pricing Effective Time Notes, the Prospectus, as of the date of the prospectus supplement or, if applicable, the pricing supplement forming a part thereof, or, if applicable, the applicable Settlement Date, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may say that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, except (i) for those made under the captions "Description of Debt Securities We May Offer" and "Plan of Distribution" in the Prospectus, under the captions "Description of Notes We May Offer" and "Supplemental Plan of Distribution" in the prospectus supplement forming a part of the Prospectus and under the captions "Description of the Notes" and "Underwriting," or similar or comparable captions, in any pricing supplement forming a part of the Prospectus, insofar as they relate to provisions therein described, of the Notes, the Indenture and this Agreement and, if applicable, such Terms Agreement and (iiiii) the Prospectus as of its date and as accuracy of the Closing Date descriptions of the Federal laws of the United States contained in the prospectus supplement forming a part of the Prospectus under the caption "United States Taxation," and that they do not express any untrue opinion or belief as to the financial statements or other financial data contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or as to the statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light eligibility of the circumstances Trustee under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered the Indenture. Such counsel may also say that their letter is furnished to the Underwriters at Agents by them as counsel for the Closing Date have been duly authorized and, when issued Company and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have is solely for the rights set forth in benefit of the Company’s certificate of incorporationAgents. Such counsel may base their opinions, as amended to certain matters, on certificates of officers of the Company and may rely as to all matters relating to the Closing Datelaws of the Commonwealth of Puerto Rico upon the opinion of Brunilda Santos de Alvarez, Esq., delivered pursuant to Section 5(a)(0) xxxxxx.
Appears in 1 contract
Samples: Distribution Agreement (Popular International Bank Inc)
Opinion of Counsel to the Company. The Investors shall have received --------------------------------- an opinion of Associate General Counsel, Corporate Treasury of counsel to the Company, or other counsel satisfactory Brown, Rudnick, Freed & Gesmer, addressed to the UnderwritersInvestors, in form and substance reasonably satisfactory to the Underwriters Investors and counsel for dated the UnderwritersClosing Date, substantially to the effect thatfollowing effect:
(Aa) This Agreement, the Articles of Amendment and the certificates representing the Shares to be purchased at the Closing have been duly and validly authorized, executed, and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights, and except that no opinion need by expressed with respect to the availability of equitable remedies or the enforceability of Section 9.07 or 9.08 hereof (to the extent that the Company agrees to indemnify directors, officers and controlling persons for liabilities arising under the Securities Act);
(b) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Company at or prior to the Closing in connection with the transactions contemplated by this Agreement have been duly and validly taken;
(c) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts and has all requisite corporate power and authority to own its properties and conduct its business;
(Bd) This The Company has secured all governmental consents, approvals, authorizations and, to the best knowledge of such counsel, has obtained such other consents, approvals and authorizations, and has complied with all similar requirements prescribed by any law, rule or regulation which must be obtained or satisfied by the Company and which are necessary for the consummation of the transactions contemplated by this Agreement at or prior to the Closing;
(e) The Company has the corporate right, power and authority to enter into this Agreement and to issue, sell and deliver the Shares and to consummate all other transactions contemplated hereby;
(f) The outstanding shares of capital stock of the Company have been duly authorizedauthorized and validly issued and are fully paid and nonassessable, executed and delivered by and, to the best knowledge of such counsel, except as set forth in Section 2.02, there are no outstanding options for the purchase of, or any agreements providing for the issuance of (contingent or otherwise), or any commitments or claims of any character relating to, any such capital stock or any shares of stock or securities convertible into or exchangeable for any such capital stock;
(g) The Company is not in violation of its Articles of Organization, as amended, or bylaws or, to the best knowledge of such counsel, in default in the performance of any material obligation, agreement or condition contained in any bond, debenture or other evidence of indebtedness or any indenture or loan agreement of the Company.
(C) . Neither the sale of the Shares, nor the execution and delivery of this Agreement nor Agreement, the issuance and sale consummation of the Preferred Stock by transactions herein contemplated and the Company as provided herein will compliance with the terms of this Agreement do, or will, (i) contravene the certificate of incorporation conflict with or by-laws of the Company or (ii) result in any violation a breach of any of (A) the terms or provisions of, or constitute a default under, the Articles of any lawOrganization, rule as amended, or regulation the bylaws of the State Company, or, to the best knowledge of New Yorksuch counsel, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any material indenture, mortgage or other agreement or instrument known of which they have knowledge to such counsel by which the Company is as party or by which it or any of its subsidiaries is bound properties are bound, or (ii) to the best knowledge of such counsel, result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company;
(h) Holders of the shares of Series C Preferred and Series D Preferred have the respective rights, reference and privileges set forth in the Articles of Amendment, which is material have been duly and properly adopted and filed in all places where they are required to be filed;
(i) Based on the accuracy of the representations of the Company and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material Investors contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly the offer, issuance and validly issuedsale of the Shares to the Preferred shareholder pursuant to this Agreement are exempt from registration under the Securities Act; and
(j) To the best knowledge of such counsel, fully paid and nonassessable, and will have the rights set forth in there is no litigation or governmental proceeding or investigation pending or threatened against the Company’s certificate of incorporation, as amended relating to the Closing Datepresent or proposed business, property or assets of the Company. In rendering such opinion, such counsel may rely to a reasonable extent upon certificates of public officials and upon certificates of officers of the Company as to matters of fact. Such opinion may be based on existing laws, rules and regulations.
Appears in 1 contract
Samples: Series C and Series D Preferred Stock Purchase Agreement (Vivid Technologies Inc)
Opinion of Counsel to the Company. The On the date hereof, the Agents shall have received an opinion of Associate General Counsel, Corporate Treasury of from Lockx Xxxxxxx Xxxn Harrxxx (X Professional Corporation) counsel to the Company, or other counsel satisfactory to dated as of the Underwriters, date hereof and in form and substance satisfactory to the Underwriters and counsel for the Underwriters, Agents to the effect that:
(Ai) The Company and each of the Subsidiaries is a corporation validly existing and in good standing under the laws of its state of incorporation;
(ii) The Company has been duly incorporated full corporate power and is validly existing corporate authority to enter into and perform its obligations under this Agreement and the laws of Indenture to borrow money as contemplated in this Agreement and the State of Delaware.Indenture, and to issue, sell and deliver the Securities;
(Biii) This Agreement has been duly authorized, executed and delivered by the Company.;
(iv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery by the Trustee) is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (B) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and (C) Neither such other matters as shall be satisfactory to counsel to the execution and delivery Agents;
(v) No consent or approval of this Agreement nor any United States governmental authority or other United States person or United States entity is required in connection with the issuance and or sale of the Preferred Stock by Securities other than registration thereof under the Company as provided herein will (i) contravene the certificate of incorporation or by-laws 1933 Act, qualification of the Company Indenture under the 1939 Act, and such registrations or (ii) result in any violation of any of (A) qualifications as may be necessary under the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) laws of the terms of any indenture, mortgage or other agreement or instrument known to such counsel by various United States jurisdictions in which the Company or any of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a whole.
(D) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required Securities are to be stated therein offered or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Date.sold;
Appears in 1 contract
Opinion of Counsel to the Company. The Placement Agent shall receive the opinion of Associate General CounselAndrxxx & Xurtx, Corporate Treasury of X.L.P., counsel to the Company, or other counsel satisfactory to dated as of the UnderwritersClosing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, substantially to the effect that:
(Ai) The the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.;
(ii) the Company has the requisite corporate power and authority necessary to own or hold its properties and conduct its business as described in the Prospectus;
(iii) the Company is duly qualified to do business as a foreign corporation and is in good standing in the State of Texas and in each other jurisdiction in which the nature of the business conducted by it, or the properties owned, leased or operated by it, makes such qualification necessary, except where the failure to be so qualified would not have a Material Adverse Effect. Other than with respect to the Subsidiaries or as described in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity ownership or proprietary interests in any other corporation, association, trust, partnership, joint venture or other entity;
(iv) the authorized capitalization of the Company as of the date of the Prospectus is as set forth under "Capitalization" in the Prospectus; (A) all the outstanding shares of Common Stock issued by the Company pursuant to the Company's acquisition of Oncologix, Inc. and Triplex Pharmaceutical Corporation by the merger of such corporations with subsidiaries of the Company and issued by the Company subsequent to the date of such mergers and (B) This Agreement has the 837,989 shares of Common Stock issued to Abboxx Xxxoratories on November 30, 1998, have been duly authorized, are validly issued, fully paid and nonassessable, and have not been issued in violation of the preemptive or similar rights arising by operation of law or under the charter or bylaws of the Company or, to such counsel's knowledge after due inquiry, under any agreement to which the Company is a party;
(v) the shares of Common Stock (including the Shares) conform in all material respects to the descriptions thereof contained in the Prospectus under the caption "Description of Capital Stock;" the Placement Warrants conform in all material respects to the description thereof contained in the Prospectus;
(vi) the Shares and the shares of Common Stock to be issued upon exercise of the Placement Warrants (the "Warrant Shares"), when issued and delivered for value received by the Company, not less than the par value thereof, in accordance with the terms of this Agreement or the Placement Warrants, as the case may be, will be validly issued, fully paid, non-assessable, and the issuance of such shares of Common Stock is not subject to any preemptive or similar rights arising by operation of law or under the charter or bylaws of the Company or, to such counsel's knowledge after due inquiry, under any agreement to which the Company is a party; the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise of the Placement Warrants;
(vii) to such counsel's knowledge after due inquiry, neither the filing of the Registration Statement nor the offering or sale of the Shares or the exercise of the Placement Warrants, as contemplated by this Agreement gives rise to any rights of any person, corporation, partnership or other entity to require registration under the Act of any shares of Common Stock or other securities of the Company, other than such rights which have been waived or satisfied in accordance with the requirements of the instruments granting such rights and the rights contained in the Placement Warrants;
(viii) the execution, delivery and performance of each of the Offering Documents to which the Company is a signatory, and the issuance of the Shares, the Placement Warrants and the Warrant Shares, have been duly authorized by all necessary corporate action on the part of the Company or its shareholders;
(ix) the Placement Agency Agreement, the Placement Warrants and the Escrow Agreement have been duly executed and delivered by the Company.; the Placement Warrants constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms under the law of the State of New York, expressed to govern the same, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity (including, without limitation, principles of reasonableness, materiality, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(Cx) Neither the certificates evidencing the Shares comply in all material respects as to form under the Delaware General Corporation Law;
(xi) except as described in the Prospectus, to such counsel's knowledge after due inquiry, (i) there are no pending or threatened legal or governmental proceedings to which the Company is a party, which might reasonably be expected to materially adversely affect the business, property, financial condition, or operations of the Company or seek to enjoin or prevent the issuance, sale and delivery of the Shares or question the validity of the Offering Documents or actions to be taken thereunder, and (ii) there are no governmental proceedings or regulations that are required to be described or referred to in the Registration Statement which are not so described or referred to;
(xii) the execution and delivery of this Agreement nor and the issuance other Offering Documents and sale the consummation of the Preferred Stock by the Company as provided herein transactions contemplated hereby and thereby, will not result in a breach or violation of, or constitute a default under, (i) contravene the certificate Certificate of incorporation Incorporation or byBy-laws of the Company or Company, (ii) result in any violation of any of (A) contract, indenture, mortgage, loan agreement, lease, joint venture, or other agreement or instrument filed as an exhibit to the terms or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject Registration Statement (other than with respect to applicable securities covenants or Blue Sky lawsagreements of a financial or numerical nature or requiring computation, as to which such counsel need not express any no opinion) or (Biii) the terms of any indentureorder, mortgage rule, regulation, writ, injunction, or other agreement or instrument decree known to such counsel by which of any government, governmental instrumentality, or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries is bound or any of their properties or business, other than, in the case of clauses (ii) and (iii), any such default which is material to the Company and its subsidiaries taken as would not have a whole.Material Adverse Effect;
(Dxiii) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is has become effective under the 1933 Act andAct, and to the best of such counsel’s 's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act issued, and no proceedings for that purpose have been instituted or proceedings therefor initiated are pending before, or threatened by by, the Commission.;
(Gxiv) The the Registration Statement at the Effective Time Statement, when it became effective, and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements statements, related notes and schedules thereto, and other financial and statistical material data contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stocktherein, as to which, in each case, which such counsel need not express any no opinion) comply on the date of filing or date thereof complied as to form in all material respects with the 1933 applicable requirements of the Act and the applicable rules Rules and regulations of the Commission thereunder.Regulations;
(Hxv) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained does not know of any contracts or incorporated by reference therein or omitted therefrom, as agreements to which counsel need not express any belief) (i) each part the Company is a party of a character required to be summarized or described in the Registration Statement at the time it became effective, and if an amendment Prospectus or to be filed as exhibits to the Registration Statement has been filed which are not so summarized, described, or filed;
(xvi) to the such counsel's knowledge, no authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the authorization, issuance, transfer, sale, or delivery of the Shares by the Company, the execution, delivery, and performance of this Agreement by the Company with or the Commission subsequent taking of any action contemplated herein, or the issuance of the Placement Warrants or the Warrant Shares, other than registrations or qualifications of the Shares under applicable state or foreign securities or Blue Sky laws and registration under the Act or as may be required by the National Association of Securities Dealers, Inc. (the "NASD");
(xvii) upon the issuance of the Shares, the Placement Warrants and the Warrant Shares, each of the Purchasers or the Placement Agent and its designees, as the case may be, shall acquire such securities, free and clear of all pledges, liens, claims or encumbrances imposed by the Company under its Certificate of Incorporation or Bylaws or, to such datecounsel's knowledge, at under any agreement to which the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of Company is a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized party; and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Date.
Appears in 1 contract
Samples: Placement Agency Agreement (Aronex Pharmaceuticals Inc)
Opinion of Counsel to the Company. The Placement Agent shall receive the opinion of Associate General CounselAndrxxx & Xurtx, Corporate Treasury of X.L.P., counsel to the Company, or other counsel satisfactory (stating that each of the Purchasers may rely thereon as though addressed directly to such Purchaser), dated as of the UnderwritersClosing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, substantially to the effect that:
(Ai) The the Company has been is duly incorporated and is incorporated, validly existing and in good standing under the laws of the State of Delaware., has all requisite corporate power and authority necessary to own or hold its properties and conduct its business as described in the Registration Statement and the Prospectus;
(Biii) This Agreement has the authorized capitalization of the Company as of the date of the Prospectus is as set forth under "Capitalization" in the Prospectus; all shares of the Company's outstanding capital stock have been duly authorized, executed are validly issued, fully paid and nonassessable; conform in all material respects to the descriptions thereof contained in the Prospectus under the caption "Description of Capital Stock," and to such counsel's knowledge have not been issued in violation of the preemptive rights of any shareholder; the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the Shares except as provided in the Prospectus; the Shares, the Placement Warrants, and the Escrow Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus;
(iv) the Shares and the shares of Common Stock to be issued upon exercise of the Placement Warrants (the "Warrant Shares"), when issued and delivered in accordance with the terms of this Agreement and the Placement Warrants, respectively, will be validly issued, fully paid, non-assessable, and free of preemptive rights and no personal liability will attach to the ownership thereof; all prior sales by the Company of the Company.'s securities have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Placement Warrants;
(Cv) Neither to such counsel's best knowledge, neither the filing of the Registration Statement nor the offering or sale of the Shares or the exercise of the Placement Warrants, as contemplated by this Agreement gives rise to any rights of any person, corporation, partnership or other entity to require registration under the Act of any shares of Common Stock or other securities of the Company other than such rights which have been waived or satisfied;
(vi) the execution, delivery and performance of each of the Offering Documents to which the Company is a signatory, and the issuance of the Shares, the Placement Warrants and the Warrant Shares have been duly authorized by all necessary corporate action on the part of the Company or its shareholders;
(viii) the certificates evidencing the Shares comply in all material respects with the Delaware General Corporation Law; the Placement Warrants will be exercisable for shares of Common Stock in accordance with the terms of the Placement Warrants;
(ix) to such counsel's knowledge there are no pending or threatened legal or governmental proceedings to which the Company is a party, which would materially adversely affect the business, property, financial condition, or operations of the Company or which question the validity of the Shares or any of the Offering Documents, or of any action taken or to be taken by the Company pursuant to any of the Offering Documents and to such counsel's knowledge, there are no governmental proceedings or regulations that are required to be described or referred to in the Registration Statement which are not so described or referred to;
(x) the execution and delivery of this Agreement nor and the issuance other Offering Documents and sale the consummation of the Preferred Stock by transactions contemplated hereby and thereby, will not result in a breach or violation of, or constitute a default under, the Company as provided herein will (i) contravene the certificate Certificate of incorporation Incorporation or byBy-laws of the Company or (ii) result in Company, any violation of any of (A) the terms or provisions of any lawmaterial contract, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage mortgage, loan agreement, lease, joint venture, or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is a party or by which they or any of their properties are bound and which is material to or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality, or court, domestic or foreign or violate any applicable order or decree of any governmental agency or court having jurisdiction over the Company and or any of its subsidiaries taken as a whole.or any of their properties or business;
(Dxi) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is has become effective under the 1933 Act andAct, and to the best of such counsel’s 's knowledge, no stop order suspending the effectiveness of the Registration Statement has is in effect, and no proceedings for that purpose have been issued under the 1933 Act instituted or proceedings therefor initiated are pending before, or threatened by by, the Commission.;
(Gxii) The the Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material data contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, which such counsel need not express any no opinion) as of the Effective Date comply as to form in all material respects with the 1933 applicable requirements of the Act and the applicable rules Rules and regulations Regulations;
(xiii) or agreements to which the Company is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described, or filed;
(xiv) to the such counsel's knowledge no authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the authorization, issuance, transfer, sale, or delivery of the Commission thereunder.Shares by the Company, the execution, delivery, and performance of this Agreement by the Company or the taking of any action contemplated herein, or the issuance of the Placement Warrants or the Warrant Shares, other than registrations or qualifications of the Shares under applicable state or foreign securities or Blue Sky laws and registration under the Act;
(Hxv) Nothing has come upon the issuance of the Common Stock, the Placement Warrants and the Common Stock issuable upon exercise of the Placement Warrants each of the Purchasers or the Placement Agent and its designees, as the case may be, shall acquire such securities, free and clear of all pledges, liens, claims, encumbrances, preemptive rights, rights of first offer or right of first refusal and restrictions (other than those created by the Placement Agent or its designees themselves) known to such counsel’s attention that would lead such counsel after due inquiry;
(xvi) the Company is not, and upon the consummation of the transactions contemplated by this Agreement will not be an "investment company" as defined pursuant to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefromInvestment Company Act of 1940, as amended;
(xvii) based solely on advice of representatives of Nasdaq, the Shares and the Common Stock issuable upon exercise of the Placement Warrants are duly authorized for quotation on the Nasdaq National Market, subject to notice of issuance;
(xviii) the issuance and Sale by the Company of the Shares does not violate Nasdaq Market Place Rule 4460(i); and
(xiv) insofar as the statements in the Registration Statement purport to summarize the nature and status of litigation or provisions of law, rules, regulations, orders judgments or decrees or legal proceedings, such statements are correct in all material respects and are fair summaries of the matters referred to therein. its counsel during which counsel need not express any belief) (i) each part the contents of the Registration Statement at and Prospectus and related matters were discussed. Such counsel shall state that, relying as to materiality to a large extent upon facts provided to such counsel by officers and other representatives of the time it became effectiveCompany, the actions performed in sections (i) and if an amendment (ii) above did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement has been filed by or any amendment thereto and the Company with the Commission subsequent to such dateProspectus included therein, at the time of the most recent such filing prior to the time of issuance of this opinionRegistration Statement became effective, contained an any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto, and other financial information included therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Placement Agent or counsel for the Placement Agent shall reasonably request. In rendering such opinion, and (ii) such counsel may rely upon certificates of any officer of the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement Company or public officials as to matters of a material fact or omitted to state a material fact necessary in order to make the statements thereinfact. Such counsel shall state, in opining on any matter stated to be subject to the light knowledge of such counsel, that such knowledge shall include the actual knowledge of such counsel who have given substantive attention to the Company's affairs in connection with the Offering and that such counsel has made due inquiry, including, but not limited to, appropriate inquiries of officers of the circumstances under Company with respect to the subject matter of such opinion and has reviewed all documents the existence of which they were made, not misleading, and (iii) the Prospectus is disclosed by such inquiries or of which such counsel is otherwise aware of as a result of its date and as representation of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingCompany.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Date.
Appears in 1 contract
Samples: Placement Agency Agreement (Aronex Pharmaceuticals Inc)
Opinion of Counsel to the Company. (a) Each of the Company and its Subsidiaries (A) is a duly incorporated and validly existing corporation in good standing under the laws of its jurisdiction of incorporation, with corporate power and corporate authority to own or lease its properties and to conduct its business as described in the Prospectus; and (B) is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction (x) in which the conduct of its business requires such qualification and (y) in which it owns or leases property.
(b) The opinion authorized, issued and outstanding capital stock of Associate General Counsel, Corporate Treasury the Company is as set forth under the caption "Capitalization" in the Prospectus; the issued and outstanding shares of the Company's capital stock have been duly authorized and validly issued by the Company, are fully paid and nonassessable and have been issued in compliance with all federal and state securities laws and to the knowledge of such counsel, have not been issued in violation of any preemptive right, co-sale right, registration right, right of first refusal or other counsel satisfactory similar right known to the Underwriters, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that:such counsel;
(Ac) The Company has duly authorized the issuance and sale of the Shares to be sold by it hereunder; such Shares, when issued by the Company and paid for in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus and will be sold free and clear of any pledge, lien, security interests, encumbrance, claim, or equitable interest, and, to the knowledge of such counsel, not in violation of or subject to any preemptive right, co-sale right, right of first refusal or other similar right, which rights have not previously been duly incorporated waived, in connection with the purchase or sale of any of the Shares;
(d) To the best knowledge of such counsel, there are no contracts or documents which are required by the Act to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required by the Act and is validly existing the Rules and Regulations;
(e) The statements set forth under the laws headings "Risk Factors --_____________," "Business -- Legal Matters," "Management -- Employee Stock and Other Benefit Plans," "Description of Capital Stock," and "Certain Transactions" and statements in response to Items 14 and 15 of Form S-1 under the Act of the State Registration Statement in the Prospectus, insofar as such statements constitute a summary of Delaware.the legal matters, documents or proceedings referred to therein, provide an accurate summary in all material respects of such legal matters, documents and proceedings;
(Bf) This The Company and each Selling Stockholder, as applicable, has all requisite corporate legal right, power, and authority to enter into this Agreement and to consummate the transactions provided for herein; this Agreement has been duly authorized, executed and delivered by the Company.Company and each Selling Stockholder, as applicable;
(Cg) Neither None of the Company's execution and or delivery of this Agreement nor the issuance and sale Agreement, its performance hereof, its consummation of the Preferred Stock by transactions contemplated herein conflicts or will conflict with or results or will result in any breach or violation of any of the Company as provided herein will (i) contravene terms or provisions of, or constitute a default under, the terms of the certificate of incorporation or by-laws of the Company; the terms of any indenture, mortgage, deed of trust, voting trust agreement, stockholder's agreement, note agreement or other agreement or instrument filed as an exhibit to the Registration Statement to which the Company is a party or by which it is or may be bound or to which any of its properties may be subject; or, to the best knowledge of such counsel, any Massachusetts, New York or United States statute, rule or regulation or the Delaware General Corporate Law, of any state or Federal regulatory body or administrative agency or other governmental agency or body, of any state or Federal government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, having such jurisdiction;
(iih) None of the Selling Stockholder's execution or delivery of this Agreement, its performance hereof, its consummation of the transactions contemplated herein conflicts or will conflict with or results or will result in any breach or violation of any of (A) the terms or provisions of, or constitute a default under, the terms of the certificate of incorporation or by-laws of such Selling Stockholder, as applicable; the terms of any lawindenture, mortgage, deed of trust, voting trust agreement, stockholder's agreement, note agreement or other agreement or instrument filed as an exhibit to the Registration Statement to which such Selling Stockholder, as applicable, is a party or by which it is or may be bound or to which any of its properties may be subject; or, to the best knowledge of such counsel, any New York or United States statute, rule or regulation or the Delaware General Corporate Law, of any state or Federal regulatory body or administrative agency or other governmental agency or body, of any state or Federal government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, having such jurisdiction;
(i) No consent, approval, authorization or order of any state or Federal court regulatory body or administrative agency or other New York or Federal governmental agency or body, has been or is required for the Company's or the Selling Stockholders'performance of this Agreement or the consummation of the transactions contemplated hereby, except such as have been obtained under the Act or may be required under state securities or blue sky laws (as to which no opinion shall be expressed) in connection with the purchase and distribution by the Underwriters of the Shares or may be required by the National Association of Securities Dealers, Inc. (as to which no opinion shall be expressed);
(j) Upon delivery of the Shares and payment therefor in accordance with the terms of the Agreement, the several Underwriters will acquire all of the rights of the Selling Stockholders to such Shares and will acquire such Shares free and clear of any "adverse claim"(as such term is used in Section 8-302 of the Uniform Commercial Code as in effect in the State of New York), assuming the several Underwriters acquire such Shares in good faith and without notice of any "adverse claim."
(k) All holders of securities of the Company who, to such counsel's knowledge, have rights to cause the Company to register shares of Common Stock or other securities because of the filing of the Registration Statement by the Company have waived such rights, such rights have expired by reason of lapse of time following notification of the Company's intent to file the Registration Statement or such rights have been satisfied in accordance with their respective terms;
(l) No transfer taxes are required to be paid in connection with the sale or delivery to the Underwriters of the Shares; In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York, the corporate laws Delaware General Corporation Law or the United States. References to the Registration Statement and the Prospectus in such opinion shall include any amendment or supplement thereto at the date of such opinion. In addition, such counsel shall provide a separate letter to the Representatives of the State of Delaware or several Underwriters in the federal law form attached hereto as Appendix B. Schedule II Selling Stockholders BMG Entertainment Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxx, Xx. Xxxx X. Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxx Appendix B [Insert Date] ING Baring Xxxxxx Xxxx LLC Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc. Xxxxxx Xxxxxx & Company, Inc. As representatives of the United States several Underwriters named in Schedule I hereto c/o ING Baring Xxxxxx Xxxx LLC 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as counsel for Take-Two Interactive Software, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of America 1933, as amended (the "Securities Act"), of its Registration Statement on Form S-1 (Registration No. 333-_______), as amended, relating to which the offering of an aggregate of (i) 3,500,000 shares (the "Company Shares") of the Company's common stock, par value $.01 per share (the "Common Stock"), by the Company is subject and (other than with respect ii) 1,500,000 shares (the "Stockholder Shares") of Common Stock by the selling stockholders listed in Schedule II (the "Selling Stockholders") to applicable securities or Blue Sky lawsthe several underwriters (the "Underwriters") listed in Schedule I to the Underwriting Agreement, dated March __, 1999 (the "Agreement"), between the Company, the Selling Stockholders and you, as representatives of the several Underwriters (the "Representatives"). The Company Shares to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument known to such counsel be sold by which the Company and the Stockholder Shares to be sold by the Selling Stockholders are collectively referred to herein as the "Firm Shares." The Company also proposed to issue and sell to the several Underwriters an aggregate of not more than 750,000 additional shares of Common Stock (the "Additional Shares"), if requested by the Underwriters in accordance with Section 9 of the Underwriting Agreement. The Firm Shares and the Additional Shares are collectively referred to herein as the "Shares." The Registration Statement, as amended when it became effective (including the information deemed to be a part thereof as of such time pursuant to Rule 430A under the Securities Act), is herein called the "Registration Statement," and the related prospectus dated __________, 1999, as filed on __________, 1999 with the Commission pursuant to Rule 424(b) under the Securities Act, is herein called the "Prospectus." We have examined such corporate records, certificates and other documents as we have considered necessary or appropriate for the purposes of this letter. Whenever a statement herein is indicated to be based upon "our knowledge" or "the best of our knowledge" or contains a similar qualification, it should be understood that during the course of our representation of the Company and the Selling Stockholders we have not undertaken any independent investigation to determine the existence or absence of its subsidiaries is bound facts in connection with the preparation of this letter. The phrase "our knowledge," and which is material similar language used in certain of the statements below, are limited to the knowledge of the lawyers within our firm who have given attention to the Company's affairs. Capitalized terms used but not defined herein shall have the respective meanings attributed to them in the Agreement. We have participated in the preparation of the Registration Statement and Prospectus and have participated in discussions with your representatives, those of counsel for the Underwriters, and those of the Company and its subsidiaries taken as a whole.
(D) The statements contained accountants. On the basis of the information that we gained in the Preliminary Prospectus (excluding course of the Base Prospectus) performance of the services referred to above, considered in the light of our understanding of the applicable law and the Prospectus (excluding the Base Prospectus) experience we have gained through our practice under the captions “Description of Securities Act, we confirm to you that nothing that came to our attention in the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement is effective under the 1933 Act and, to the best course of such counsel’s knowledge, no stop order suspending the effectiveness of review has caused us to believe that the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments further amendment thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed made by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, Closing Date contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Pricing Disclosure Material at the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements thereinthat, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under in which they were made, not misleading or that, as of the Closing Date, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(I) . The shares of Preferred Stock being delivered Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to the Underwriters at the Closing Date have been duly authorized and(other than financial, when issued statistical or accounting data and delivered related schedules therein, as provided to which we make no statement) comply as to form in this Agreementall material respects to the requirements of the Securities Act and the applicable Rules and Regulations promulgated under the Securities Act. To the best of our knowledge, will there is not pending or threatened against the Company any action, suit, proceeding or investigation before or by any court, regulatory body or administrative agency, or any other governmental agency or body, domestic or foreign, of a character required to be duly and validly issued, fully paid and nonassessable, and will have the rights set forth disclosed in the Company’s certificate Registration Statement or the Prospectus which is not so disclosed therein. The Registration Statement has become effective under the Securities Act. The foregoing statement is based solely upon verbal advice of incorporation__________ the Securities and Exchange Commission staff on __________, 1999 that the Commission had declared the Registration Statement effective as amended of _____ p.m. on __________, 1999. To the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission nor has any proceeding been instituted or contemplated for that purpose under the Securities Act. Based solely upon a written confirmation from the Commission's XXXXX Filing Desk dated __________, 1999, the Prospectus has been filed with the Commission pursuant to Rule 424(b) of the Closing DateRules and Regulations promulgated under the Securities Act within the time period required thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Take Two Interactive Software Inc)
Opinion of Counsel to the Company. The opinion of Associate General CounselPurchaser shall have received favorable opinions dated the Closing Date from Arent Fox PLLC, Corporate Treasury of special counsel to the Company, or other counsel satisfactory to the Underwriters, in form Purchaser and substance satisfactory to the Underwriters and counsel for the UnderwritersPurchaser’s counsel, to the effect that:
(A1) The the Company has been is a corporation duly incorporated and is incorporated, validly existing existing, in good standing under the laws of Maryland, and duly authorized to transact business in Maryland, and qualified to do business in Maryland, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals to carry on its business as now conducted and to enter into and perform this Agreement and the State of Delaware.Development Agreement;
(B2) this Agreement and the Development Agreement have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has and the Development Agreement have been duly authorized, executed and delivered by the Company and constitute valid and binding agreements of the Company., subject to the customary qualifications for bankruptcy and the application of equitable principles in actions to enforce contracts;
(C3) Neither to the execution knowledge of such counsel upon reasonable inquiry, there are no actions, suits or proceedings, pending or threatened against or affecting the Company or any Subsidiary of the Company in any court or before any arbitrator or before or by any Governmental Body in which there is a reasonable possibility of an adverse decision which would materially adversely affect the business, financial position or results of operations of the Company and delivery its Subsidiaries, or which in any manner raises any question affecting the validity of this Agreement nor or the issuance and sale of Development Agreement;
(4) the Preferred Stock execution, by the Company as provided herein will (i) contravene of this Agreement and the Development Agreement do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation or by-laws of the Company or (ii) result in any violation of any of (A) the terms agreement, judgment, injunction, order, decree or provisions of any law, rule or regulation of the State of New York, the corporate laws of the State of Delaware or the federal law of the United States of America to which other instrument binding upon the Company is subject (other than with respect to applicable securities or Blue Sky laws, as to which such counsel need not express any opinion) or (B) the terms of any indenture, mortgage or other agreement or instrument and known to such counsel by which after reasonable inquiry, or result in the Company creation of any lien or other encumbrance on any asset of its subsidiaries is bound and which is material to the Company and its subsidiaries taken as a whole.Company; and
(D5) The statements contained in the Preliminary Prospectus (excluding the Base Prospectus) and the Prospectus (excluding the Base Prospectus) under the captions “Description of the Preferred Stock” and “Underwriting” insofar as such statements purport to summarize certain provisions of documents (no consent or provisions thereof) or statutes (or provisions thereof) referred to therein, fairly present the matters referred to therein.
(E) Each document incorporated by reference in each of the Registration Statement, the Pricing Disclosure Material and the Prospectus which was filed pursuant to the 1934 Act (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder.
(F) The Registration Statement approval is effective under the 1933 Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(G) The Registration Statement at the Effective Time and the Prospectus and any supplements and amendments thereto as of their respective effective or issue dates (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom and except for supplements and amendments relating only to securities other than the Preferred Stock, as to which, in each case, such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder.
(H) Nothing has come to such counsel’s attention that would lead such counsel to believe that (except for the financial statements and schedules and other financial and statistical material contained or incorporated by reference therein or omitted therefrom, as to which counsel need not express any belief) (i) each part of the Registration Statement at the time it became effective, and if an amendment to the Registration Statement has been filed by the Company with the Commission subsequent to such date, at the time of the most recent such filing prior to the time of issuance of this opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein by, or necessary to make document filed with, any Governmental Body in connection with the statements therein not misleadingexecution, delivery and (ii) performance of this Agreement or the Pricing Disclosure Material at Development Agreement by the Pricing Effective Time contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make Company, or, if such action is required, the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(I) The shares of Preferred Stock being delivered to the Underwriters at the Closing Date have same has been duly authorized andtaken, when issued is in full force and delivered as provided in this Agreement, will be duly effect and validly issued, fully paid constitutes valid and nonassessable, and will have the rights set forth in the Company’s certificate of incorporation, as amended to the Closing Datesufficient authorization therefor.
Appears in 1 contract
Samples: Bond Purchase Agreement (Emergent BioSolutions Inc.)
