Opinion of Counsel. The Representative shall have received an opinion, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that: (a) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company; (b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it; (c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement; (d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects; (e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws. (f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights. (g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company; (h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required; (i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company; (j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission; (k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations; (l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and (m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 3 contracts
Samples: Underwriting Agreement (Shopping Com), Underwriting Agreement (Shopping Com), Underwriting Agreement (Shopping Com)
Opinion of Counsel. The Representative Purchaser shall have received been provided with an opinion, dated the Firm Closing Datecontaining customary qualifications and other limitations, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California from counsel for the Company, to Seller substantially to the effect that:
(a) the Company has been duly organized and Seller is a corporation validly existing as a corporation and in good standing under the laws of the State of California, Delaware. Seller has all requisite corporate power and authority to carry on its business operations and to own and operate the business in which it is engaged. Seller is duly qualified to transact the business as a foreign corporation in which it is engaged and is in good standing under as a foreign corporation in the laws State of all New York and, to such counsel’s knowledge, in each other jurisdictions where jurisdiction in which the ownership or leasing operation of its properties or the conduct of its business Business requires such qualification, except where it to be registered unless the failure to be so qualified registered would not have a material adverse effect on the Company;Seller.
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement The authorized and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of Seller, and the Company have been duly holders thereof, are as set forth in Schedule 2.2(c) hereof, and all of such outstanding shares of capital stock are validly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; .
(c) Seller has all requisite power and authority to execute, deliver, and perform the shares Agreement, Xxxx of capital stock Sale and all other documents and instruments contemplated by the Agreement (“Transaction Documents”) to which Seller is a party, and to consummate the transaction contemplated thereby. The execution and delivery of the Company Transaction Documents to which Seller is a party, and the consummation of the transactions contemplated thereby, have been duly and validly authorized for quotation by all requisite corporate action taken on the Nasdaq SmallCap Market; part of Seller, its Board of Directors and stockholders, and no holders other corporate proceeding on the part of outstanding shares Seller, its Board of capital stock Directors or stockholders is necessary to authorize the Transaction Documents or the consummation of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;transactions contemplated thereby.
(d) the capital stock Each of the Company conformsTransaction Documents to which Seller is a party has been duly executed and delivered by Seller, and such Transaction Documents constitute the valid and binding obligations of Seller, to the extent Seller is a party thereto, enforceable against Seller in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to legal mattersenforceability, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;general principles of equity.
(e) The execution, delivery, and performance of the Transaction Documents by Seller will not violate or result in a breach of any term of Seller’s Certificate of Incorporation or Bylaws. To such counsel’s knowledge, neither (i) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized Transaction Documents by all necessary corporate action Seller, nor (ii) its carrying out of the Company and each transactions contemplated thereby, will result in a breach of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation any of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium Major Assigned Contracts set forth in Schedule 2.1(b) of the Agreement or similar laws affecting other Material Contracts identified in the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform To such counsel’s knowledge, the sale of Assets to be effected by the description thereof Agreement is in compliance with the Registration Statement and provisions of any applicable bulk sales or similar law in effect with the ProspectusState of New York, and when issued and paid for in accordance neither the execution nor delivery of the Transaction Documents by Seller nor Seller’s compliance with the terms and provisions thereof has violated or will violate (a) any law, statute, rule, or regulation of the agreement representing United States or, to such counsel’s knowledge, the Underwriter's WarrantsState of New York, will constitute legalnor (b) any injunction, valid and order, or decree of any court or governmental agency or authority binding obligations upon Seller of the Company entitled to the rights and benefits of which such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightscounsel has knowledge.
(g) no Except as disclosed in the Schedules to the Agreement, to such counsel’s knowledge, there is not now pending any suit, action, claim, investigation, arbitration, administrative or legal or other proceeding or governmental proceedings are pending inquiry of any kind against or relating to Seller not covered by insurance and which if adversely determined might have a material adverse effect on the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andBusiness nor, to the best knowledge of such counsel’s knowledge, no has any such proceedings have suit, action, claim, investigation, arbitration or administrative, judicial or other proceeding or governmental inquiry been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;involving Seller.
(h) no contract To such counsel’s knowledge, Seller has not been cited for any violation or violations of any order, writs, injunction, judgment, or decree of any court or federal, state or local government department, official, commission, authority, board, bureau, agency or other document instrumentality, which has been issued or is pending against Seller and which could have a material adverse effect on the Business; and (b) such counsel has no knowledge of, nor has such counsel been consulted by Seller with a view to obtaining, substantive legal advice with regard to any matter involving, the violation or alleged violation of any law by Seller, which violation or alleged violation, if proven, might have a material adverse effect on the Business.
(i) To such counsel’s knowledge, except as disclosed in Schedules to the Agreement, no authorization, approval or consent of any United States or State of New York government agency or authority is required to be described obtained by Seller in the Registration Statement or the Prospectus or order to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the permit consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Transaction Documents.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Xeta Technologies Inc), Asset Purchase Agreement (Xeta Technologies Inc)
Opinion of Counsel. The Representative Company (which term shall include any subsidiaries of the Company) shall have received an furnished to the Representative the opinion, dated the Firm Closing Date, of Xxxxxaddressed to the Representative, X'Xxxxxfrom Mackxxx, Xxxxxxxx Xxxxxxx & Xxxxxxxx LLPXoorx, Los AngelesXXC, California counsel for to the Company, substantially to the effect thatthat based upon a review by it of the Registration Statement, Prospectus, the Company's certificate of incorporation, bylaws and relevant corporate proceedings, and such other investigation by such counsel as it deems necessary to express such opinion:
(ai) the The Company has been duly organized incorporated and is a validly existing as a corporation in good standing under the laws of Texas, with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the State of CaliforniaRegistration Statement and Prospectus.
(ii) The Company, and if applicable, is duly qualified to transact business or registered as a foreign corporation and is in good standing under the laws of all other such jurisdictions where the Company has advised such counsel that the transaction of business in which it is engaged or in which its ownership or leasing of its properties or the conduct of its business property requires such qualification, except qualification or registration and where the failure to be so qualified qualify would not have a material adverse effect on the Company;its operations.
(biii) the The Company has the corporate power to own or lease its properties; to conduct its business authorized and outstanding Common Stock as described set forth in the Registration Statement and Prospectus, and has authorized the Prospectus; to enter into this Agreement and to carry out all issuance of the terms Units and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" underlying Common Stock and Warrants contained in the Prospectus; other than Units as disclosed well as the Representative's Warrants. The Units and the underlying Common Stock and Warrants conform as to legal matters to the statements concerning them in the Registration Statement and Prospectus; the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock Common Shares of the Company have been duly authorized and validly issued and are fully paid and nonassessablenonassessable and to the knowledge of counsel contain no preemptive rights; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement Units and the agreement representing the Underwriter's underlying Common Stock and Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcyshall be, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and, upon issuance thereof and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise payment therefor in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will this Agreement shall be duly and validly issued, fully paid and non- assessable nonassessable, and free shall not be subject to the preemptive rights of preemptive rightsany shareholder of the Company.
(giv) The Representative's Warrants issued to the Representative or its designees directly involved in the proposed offering have been duly and validly authorized and issued and are valid and binding instruments enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or other laws of general application affecting the rights of creditors generally and by judicial limitations on the right of specific performance and other equitable remedies, and except that no legal or governmental proceedings are pending opinion need be expressed as to which the Company is a party or to which the property validity of the Company is subject that indemnification provisions insofar as they are required or may be held to be described in the Registration Statement violative of public policy or the Prospectus and are not described therein, and, to the best knowledge limited by federal or state securities laws.
(v) A sufficient number of such counsel, no such proceedings have Units has been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations duly reserved for issuance upon exercise of the Company;Representative's Warrants.
(hvi) no contract No consents, approvals, authorizations or orders of agencies, officers or other document is regulatory authorities are known to such counsel which are necessary for the valid authorization, issue or sale of the Units, the underlying Common Stock and Warrants and the Representative's Warrants hereunder, except as required to be described in under the Registration Statement Act or the Prospectus "Blue Sky" or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;state securities laws.
(ivii) the issuance, offering The issuance and sale of the Shares Units and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement underlying Common Stock and Warrants and the agreement representing the UnderwriterRepresentative's Warrants and the consummation of the other transactions herein contemplated and therein contemplated do compliance with the terms of this Agreement shall not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and terms, conditions or provisions of, of or constitute a default underunder the certificate of incorporation, or bylaws of the Company, or to the best knowledge of such counsel, except as set forth in the Prospectus or as previously disclosed to you in writing, any note, indenture, mortgage, deed of trust, lease or other material agreement or instrument, instrument known to such counsel, counsel including contracts or leases to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement property is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted bound or, to the best knowledge of such counsel, are threatened or contemplated by the Commission;
any existing law (k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is provided this paragraph shall not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.relate to
Appears in 2 contracts
Samples: Underwriting Agreement (Surrey Inc), Underwriting Agreement (Surrey Inc)
Opinion of Counsel. The Representative Purchaser shall have received an opinion, opinion dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California Date from counsel for the CompanyParent, substantially in form and substance acceptable to Purchaser, to the effect that:
(ai) The Asset Owners and the Company has been duly organized Parent have obtained all necessary authorizations and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing consents of its properties or Board of Directors and shareholders to effect the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companytransactions contemplated hereby;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the The execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do hereby will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, instrument to which the Company is a party or by which Parent, the Company or Asset Owners. Arrow, any of its properties are boundtheir subsidiaries as bound or to which any of the property or assets of such entities and person is subject, or nor will such actions result in any violation of the provisions of the Articles of Incorporation or Bylaws (or other organizational documents of the CompanyParent, the Asset Owners or Arrow or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws body of the United States, the laws State of Florida or the Commonwealth of Puerto Rico having jurisdiction over the Parent, the Asset Owners, Arrow, any of their subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation of this Agreement; provided, however, that any opinion with respect to any agreement or instrument may be limited to the knowledge of such counsel after due inquiry.
(iii) Such counsel does nor know or have reason to believe that there is arty litigation, proceeding or investigation pending or threatened which might result in any Material Adverse Effect on the Parent, the Asset Owners or Arrow, or which questions the validity of this Agreement;
(iv) Such counsel does not know or have reason to believe that any event has occurred or state of facts exists which would constitute & breach of any of the State representations and warranties made by the Parent or the Asset Owners pursuant to Article II of California this Agreement; and
(v) This Agreement is a valid and binding obligation of the Parent, Xxxxx and the General Corporation Law Asset Owners and enforceable against each of them accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the State enforcement of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment creditors' rights generally or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3general equitable principles.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Fine Air Services Corp), Purchase and Sale Agreement (Fine Air Services Corp)
Opinion of Counsel. The Representative Depositor shall have received furnished to the Seller an opinionOpinion of Counsel, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(ai) the Company Depositor is a corporation and has been duly organized and organized, is validly existing as a corporation and is in good standing under the laws of the State of CaliforniaDelaware, with all corporate power and duly qualified authority to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of own its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to and conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(cii) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid the Sale and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Servicing Agreement and the agreement representing the Underwriter's Warrants have Trust Agreement has been duly authorized authorized, executed and delivered by all necessary corporate action of the Company Depositor and each of this Agreement and the agreement representing the Underwriter's Warrants is constitutes a legal, valid and binding obligation of the Company Depositor, enforceable against the Depositor in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance, receivership, conservatorship or similar laws relating to or affecting creditors' rights generally, except that such counsel need express no opinion as to the availability of equitable remedies or the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable indemnification for violations of federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(hiii) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorizationauthorization or order of, registration or qualification filing with, any court or governmental agency or body is required for the consummation by the Depositor of or with any governmental authoritythe transactions contemplated herein, except for the filing of the UCC-1 financing statements relating to the conveyance of the Receivables and the other Receivables Property by the Seller to the Depositor and such other approvals (which shall be specified in such opinion) as have been obtained and such filings as may be required under state securities have been made or blue sky lawsare in the process of being made; and
(iv) none of the execution and delivery of this Agreement, the Sale and Servicing Agreement or the Trust Agreement, the consummation of any other of the transactions herein or therein contemplated or the fulfillment of the terms hereof or thereof will conflict with or with, result in a breach or violation of any of the terms and provisions of, or constitute a default under, the certificate of incorporation or by-laws of the Depositor or the terms of any indenture, mortgage, deed of trust, lease indenture or other agreement or instrument, instrument known to such counsel, counsel and to which the Company Depositor is a party or by which the Company or any of its properties are it is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule order or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and to be applicable to the Company;
(j) Depositor of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Depositor.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Bear Stearns Asset Backed Funding Inc), Receivables Purchase Agreement (Bear Stearns Asset Backed Funding Ii Inc)
Opinion of Counsel. The Representative Company shall have received furnish the Subscriber with an opinionopinion of its counsel, dated subject to ordinary and customary qualifications and (reasonably acceptable to the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Subscriber) to the effect that:
that (a) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(jA) the Registration Statement is has become effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); Act and no stop order suspending the effectiveness of the Registration Statement Statement, preventing or suspending the use of the Registration Statement, any preliminary prospectus, and final prospectus, or any amendment or supplement thereto has been issued by the Commissionissued, and no proceedings for that purpose have been instituted or, nor to the best knowledge of such counselcounsel has the SEC or any securities or blue sky authority of any jurisdiction instituted or threatened to institute any proceedings with respect to such an order, are threatened or contemplated (B) each document, if any, incorporated by reference in the Commission;
Registration Statement and the prospectus included therein (kexcept for financial statements and related schedules, as to which such counsel need express no opinion) complied as to form when filed with the SEC in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the SEC thereunder, and (C) the Registration Statement and the Prospectus prospectus included therein and each amendment any supplements or supplement amendments thereto (in each case, other than the except for financial statements and other financial and statistical information contained thereinrelated schedules, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds regulations of the sale of the Firm Shares and the Option Shares solely as described in the ProspectusSEC thereunder. In addition, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they it has participated in conferences with officers and other representatives of the Company and representatives of independent accountants for the Company, at which conferences such counsel made inquiries of such officers, representatives and accountants; discussed the contents of the preliminary prospectus; the Registration Statement; and the prospectus and related matters were discussed and, although such counsel is not passing and does not assume any responsibility for the accuracy, completeness or fairness, the statements contained in the preliminary prospectus, the Registration Statement and the prospectus, on the basis of the foregoing, no facts have no reason come to the attention of such counsel which lead it to believe that either the Registration StatementStatement or on any amendment thereto, at the time such Registration Statement or amendment became effective or the preliminary prospectus or prospectus or amendment or any supplement thereto as of its effective date, the date of such opinion contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or (it being understood that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any no opinion as with respect to the financial statements and schedules and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as to matters of fact, to data included in the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United Statespreliminary prospectus, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment Statement, or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3prospectus).
Appears in 2 contracts
Samples: Subscription Agreement (GHM Inc), Subscription Agreement (GHM Inc)
Opinion of Counsel. The Representative At the Closing, the Purchasers and the Placement Agent shall have received an opinionthe opinion of Womble Carlyle Sandridge & Rixx, dated xxtxx xx xx Xxxxxxx, in xxx form set forth below and otherwise reasonably satisfactory to the Firm Closing DatePurchasers and the Placement Agent, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California and their respective counsel for the Company, substantially to the effect that:
(a) the The Company has been duly organized and is validly existing as a corporation in existence and in good standing under the laws of the State of CaliforniaDelaware, with corporate power to execute, deliver and perform its obligations under this Agreement, the Registration Rights Agreement and the other documents and agreements to be executed by the Company at the Closing in connection therewith (collectively, the "Operative Documents") and to carry on its business as now conducted;
(b) The execution, delivery and performance by the Company of each of the Operative Documents have been authorized by the Company by all necessary corporate action;
(c) No Consent or other action by, or filing or registration with, any Governmental Authority is required to be obtained on or prior to the date hereof in connection with (i) the execution, delivery and performance by the Company of the Operative Documents and (ii) the offer, sale and issuance of the Shares in accordance with the Operative Documents, except for Consents, actions, filings or registrations that, if not obtained or made, are not reasonably likely to have a Material Adverse Effect;
(d) The execution, delivery and performance by the Company of its obligations under the Agreement and the other Operative Documents (in each case assuming due authorization and execution by each party other than the Company), and duly qualified the consummation by the Company of the transactions provided for therein (including the issuance, sale and delivery of the Shares (other than with respect to transact business as the delivery in book-entry form of Shares)) do not (i) violate any provision of the Certificate of Incorporation or Bylaws, (ii) breach or result in a foreign corporation default under any agreement listed in Annex A to this opinion, or (iii) to our knowledge, violate any provision of any law, rule or regulation or any order of any court or Governmental Authority that is binding on the Company and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires known to such qualification, except where the failure counsel to be so qualified would not have a material adverse effect on applicable to the Company;
(be) This Agreement and the Registration Rights Agreement each have been duly authorized, executed and delivered by the Company has and, assuming the corporate power to own or lease its properties; to conduct its business as described in due execution and delivery thereof by the Registration Statement Purchasers where applicable, are constitute valid and the Prospectus; to enter into this Agreement and to carry out all binding obligations of the terms and provisions hereof to be carried out by itCompany, enforceable against the Company;
(cf) The Shares to be issued pursuant to the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares Agreement have been duly authorized by all necessary corporate action on the part of the Company, Company and, when issued and delivered to and paid for pursuant to this a Purchaser against payment therefor in accordance with the Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the The Company is not an "investment company" or a party company "controlled by" or to which the property of the Company is subject that are required to be described register as an investment company as such terms are defined in the Registration Statement or 1940 Act and the Prospectus SEC's rules and are not described therein, regulations thereunder; and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in Assuming the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering accuracy and sale completeness of the Shares Purchasers' representations and the Underwriter's Warrant by the Company pursuant to warranties in Section 5 of this Agreement, the compliance offer, sale and issuance of the Shares as contemplated by the Company with Agreement are exempt from the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation registration requirements under Section 5 of the other transactions herein and therein contemplated do not require Securities Act. Such opinions shall be accompanied by a statement of negative assurance substantially to the consentfollowing effect: In addition, approval, authorization, registration or qualification in the course of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result its assistance in a breach or violation of any the preparation of the terms Offering Memorandum, such counsel participated in conferences with officers and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws representatives of the Company, or any statute or any judgmentthe Placement Agent, decreecounsel to the Placement Agent and representatives of the independent public accountants of the Company, order, rule or regulation at which conferences the contents of any court or other governmental authority or any arbitrator known to the Offering Memorandum were discussed. Although such counsel does not pass upon and applicable does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum and has not independently verified the accuracy, completeness or fairness of such statements, on the basis of the foregoing and the information that was disclosed to it (relying as to materiality to the Company;
(j) extent such counsel deemed appropriate upon the Registration Statement is effective under the Act, any required filing officers and other representatives of the Prospectus pursuant Company), (i) no facts came to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for its attention that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason lead it to believe that the Registration StatementOffering Memorandum (including any document filed under the 1934 Act and incorporated by reference therein), as of its effective date, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading (except for the financial statements, including the notes and schedules thereto and the auditor's report thereon, or that any other information of a financial, numerical, statistical or accounting nature set forth or referred to in the ProspectusOffering Memorandum or any document incorporated therein by reference or any exhibits thereto, as of its date or to which such counsel expresses no view). Such opinions may be subject to such assumptions, qualifications and limitations that are customary and reasonably acceptable to the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make Purchaser and the statements therein, in light Placement Agent. Without limiting the generality of the circumstances under which they were madeforegoing, not misleading; provided that in each case such counsel (i) need not express any opinion as with regard to the financial statements application of laws of any jurisdiction other than the Federal law of the United States which are, in such counsel's experience, normally directly applicable to the Offering and other financial and statistical information contained therein. In rendering any such opinionthe Delaware General Corporation Law, such counsel (ii) may rely rely, as to matters of fact, to the extent such counsel deems proper, on representations or certificates of responsible officers of the Company and certificates of public officials. The foregoing , (iii) may express no opinion as to the effect of (a) bankruptcy, insolvency, reorganization, arrangements, fraudulent transfer, moratorium or similar laws relating to or affecting the rights of creditors and (b) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, the exercise of judicial discretion, and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, (iv) may express no opinion as to compliance with the anti-fraud or information delivery provisions of applicable securities laws, (v) may express no opinion as to compliance with the Hart-Scott-Rodino Antitrust Ixxxxxxxxxxx Xxx xf 1976, as amended, and (vi) may express no opinion as to the enforceability of the indemnification provisions of the Operative Documents to the extent the provisions thereof may be limited subject to the laws limitations of the United States, the laws of the State of California public policy and the General Corporation Law effect of the State of California. References to the Registration Statement applicable statutes and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3judicial decisions.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Blue Rhino Corp), Stock Purchase Agreement (Blue Rhino Corp)
Opinion of Counsel. The Representative Parent and Xxxxx shall have received an opinion, opinion dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California Date from counsel for the CompanyPurchaser, substantially in form and substance acceptable to the Parent, to the effect that:
(ai) the Company has been The Purchaser is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaDelaware is deemed a United States citizen under the Federal Aviation Act of 1958. as amended, together with the Aviation Regulations of the Federal Aviation Administration and recodified in Subtitle VII of Tide 49 of the United States Code, and duly qualified is authorized to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect carry on the Company;
(b) the Company has the corporate power business now conducted by it and to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out properties now owned or leased by it;
(cii) the Company The Purchaser has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by obtained all necessary corporate action authorizations and consents of its Board of Directors and shareholders to effect the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementtransactions contemplated hereby;
(diii) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the The execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do hereby will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, instrument to which the Company is a party or by which the Company or Purchaser, any of its properties are boundsubsidiaries is bound or to which any of the property or assets of such entities and person is subject, or or, to the extent required, any requisite consents have been obtained, nor will such actions result in any violation of the provisions of the Articles of Incorporation or Bylaws (or other organizational documents) of the Company, Purchaser or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority agency or body of the United States or (he State of Delaware having jurisdiction over the Purchaser, any of their subsidiaries or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement of is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)properties; and no stop order suspending consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the effectiveness consummation of the Registration Statement this Agreement; provided, however, that any opinion with respect to any agreement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, instrument may be limited to the knowledge of such counselcounsel after due inquiry.
(iv) Such counsel does not know or have reason to believe that there is any litigation, are proceeding or investigation pending or threatened which might result in any Material Adverse Effect on the Purchaser, or contemplated by which questions the Commissionvalidity of this Agreement;
(kv) the Registration Statement and the Prospectus and each amendment Such counsel does not know or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as have reason to believe that any event has occurred or state of facts exists which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements would constitute a breach of any of the Act representations and warranties made by the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds Purchaser pursuant to Article III of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedthis Agreement; and
(mvi) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of This Agreement is a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light valid and binding obligation of the circumstances under which they were madePurchaser, not misleading; provided that and enforceable against the Purchaser in each case such counsel need not express any opinion accordance with its terms, except as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion enforcement may be limited to by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the laws enforcement of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment creditors' rights generally or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3general equitable principals.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Fine Air Services Corp), Purchase and Sale Agreement (Fine Air Services Corp)
Opinion of Counsel. The Representative Acquiring Portfolio shall have received an opinionthe opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx (Illinois), counsel for the Trust on behalf of the Acquired Portfolio, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the CompanyAcquiring Portfolio, substantially in the form and to the effect that:
: (ai) the Company has been Acquired Portfolio is duly organized formed and is validly existing as a corporation in good standing under the laws of its state of organization; (ii) the State of California, and Acquired Portfolio is duly qualified to transact business designated as a foreign corporation and series of the Trust; (iii) the Acquired Portfolio is in good standing registered as an open-end, management investment company under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
1940 Act; (biv) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement reorganization provided for herein and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share execution of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares this Agreement have been duly authorized by all necessary corporate requisite action of the Company, and, when issued Trust on behalf of the Acquired Portfolio and this Agreement has been duly executed and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; by the shares of capital stock Trust on behalf of the Company have been duly authorized for quotation on Acquired Portfolio and (assuming the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except other parties thereto) is a valid and binding obligation of the Trust on behalf of the Acquired Portfolio; (v) neither the execution or delivery by the Acquired Portfolio of this Agreement nor the consummation by the Acquired Portfolio of the transactions contemplated thereby violate any provision of any statute, or any published regulation or any judgment or order disclosed to them by the Trust or the Acquired Portfolio as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium being applicable to the Trust or similar laws affecting the enforceability of creditors' rights generally Acquired Portfolio; and (vi) to their knowledge and subject to general principles of equity andthe qualifications set forth below, with respect to this Agreement, except as rights to indemnify the execution and contribution hereunder may be limited delivery by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms Trust on behalf of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations Acquired Portfolio of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require require, under the laws of the State of organization or any state in which the Acquired Portfolio is qualified to do business, or the federal laws of the United States, the consent, approval, authorization, registration registration, qualification or qualification of order of, or with filing with, any court or governmental authority, agency or body (except such as have been obtained and such as may be required under state securities or blue sky lawsthe Securities Act, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, 1940 Act or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel rules and applicable to the Company;
(jregulations thereunder.) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel Counsel need express no opinion) comply , however, as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
any such consent, approval, authorization, registration, qualification, order or filing; (la) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not which may be required as a result of the sale involvement of such Shares other parties to be registered as an investment Company within the meaning Agreement in the transactions contemplated by the Agreement because of their legal or regulatory status or because of any other facts specifically pertaining to them; (b) the Investment Company Act absence of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that which does not deprive the Registration Statement, as Acquiring Portfolio of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to benefit under such agreements; or (c) which can be stated therein readily obtained without significant delay or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as expense to the financial statements and other financial and statistical information contained therein. In rendering any such opinionAcquiring Portfolio, such counsel may rely as to matters of fact, without loss to the extent Acquiring Portfolio of any material benefit under the Agreement and without any material adverse effect on them during the period such counsel deems properconsent, on certificates of responsible officers of the Company and public officialsapproval, authorization, registration, qualification or order was obtained. The foregoing opinion may be limited relates only to consents, approvals, authorizations, registrations, qualifications, orders or filings under (a) laws which are specifically referred to in the laws of the United Statesopinion, the (b) laws of the State of California organization or any State in which the Acquired Portfolio is qualified to do business and the General Corporation Law federal laws of the State United States which, in our experience, are normally applicable to transactions of Californiathe type provided for in the Agreement and (c) court orders and judgments disclosed to them by the Trust or the Acquired Portfolio in connection with the opinion. References In addition, although counsel need not have specifically considered the possible applicability to the Registration Statement and Acquired Portfolio of any other laws, orders or judgments, nothing has come to their attention in connection with their representation of the Prospectus Acquired Portfolio in the Section 7.2 shall include this transaction that has caused them to conclude that any amendment other consent, approval, authorization, registration, qualification, order or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3filing is required.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Van Kampen Life Investment Trust), Agreement and Plan of Reorganization (Van Kampen Life Investment Trust)
Opinion of Counsel. The Representative There shall have received an been delivered to Sub the opinion, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Members' and the Company's counsel, substantially to the effect that:
(ai) the The Company has been is a limited liability company duly organized and is formed, validly existing as a corporation and in good standing under the laws of the State of California, Florida and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct carry on its business as described in the Registration Statement it is then being conducted and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;its obligations under this Agreement.
(cii) The Agreement has been duly authorized, executed and delivered by the Company has an Members and the Company, and constitutes the valid and binding obligation of each such person or entity, enforceable in accordance with its terms.
(iii) The authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly consists of 100%membership interests, of which 100% membership interests are issued and outstanding. All of such outstanding membership interests are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; . Such counsel is not aware of any existing options, calls or commitments of any character whatsoever, or agreements to grant the shares of capital stock same, relating to authorized or issued membership interests of the Company have been duly authorized Company, or any outstanding securities convertible into or exercisable for quotation on the Nasdaq SmallCap Market; no holders such membership interests, or any options, calls or commitments of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity andcharacter whatsoever, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal the issuance or state securities lawssale of any such convertible securities.
(fiv) The Underwriter's Warrants will conform Members have the full requisite power and authority to transfer and deliver the Membership Interests to Sub. The Members are the record owners, and to the description best knowledge of such counsel based on a diligent inquiry, the beneficial owners, of the Membership Interests, have duly endorsed certificates or transfer powers relating to such membership interests, or in lieu thereof in the Registration Statement and the Prospectusassignments of membership interests, and when issued and paid for in accordance with following the terms consummation of the agreement representing Merger and receipt of the Underwriter's Warrants, will constitute legalconsideration specified herein by the Members for the Membership Interests, valid title to the Membership Interests shall pass to Sub, free and binding obligations clear of any adverse claim within the meaning of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsUniform Commercial Code.
(gv) no legal The execution, delivery and performance of this Agreement by the Members and the Company will not result in a breach or governmental proceedings violation of any of the terms or provisions of, or constitute a default under the Company's or any Member's Articles of Incorporation, by-laws or other constituent document, any agreement or other instrument listed in Schedule 4.01(c) attached hereto, any agreement to which the Company or any Member, or the Company's or any Member's assets, are bound, any Law, or any judgment, decree, order, rule or regulation known to such counsel of any Governmental Authority applicable to the Company, the Members or the assets of any of them.
(vi) To such counsel's knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement subject, before or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company brought by a court or with respect to any of its properties that can reasonably be expected to, orgovernmental agency or body which, if determined adversely to adversely, would have a Material Adverse Effect upon the Companyassets, would, in any individual case business or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations affairs of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 2 contracts
Samples: Merger Agreement (Am Communications Inc), Merger Agreement (Am Communications Inc)
Opinion of Counsel. The Representative shall have received Unless otherwise specified in a Series ------------------- Supplement, an opinionOpinion of Counsel, portions of which may be delivered by counsel for the Note Issuer, portions of which may be delivered by counsel for the Seller and the Servicer, and portions of which may be delivered by counsel for the Trust, dated the Firm Closing Series Issuance Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially in each case subject to the customary exceptions, qualifications and assumptions contained therein, to the collective effect that:
(a) the Company Indenture has been duly organized qualified under the Trust Indenture Act and either the Series Supplement has been duly qualified under the Trust Indenture Act or no such qualification of the Series Supplement is necessary;
(b) all instruments furnished to the Note Trustee pursuant to this Indenture conform to the requirements set forth in this Indenture and constitute all of the documents required to be delivered hereunder for the Note Trustee to authenticate and deliver the Notes applied for, and all conditions precedent provided for in this Indenture relating to the authentication and delivery of the Notes have been complied with;
(c) the Note Issuer has the power and authority to execute and deliver the Series Supplement and this Indenture and to issue the Notes, and each of the Series Supplement and this Indenture, and the Notes have been duly authorized and the Note Issuer is duly formed and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing jurisdiction of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementorganization;
(d) the capital stock of Series Supplement and the Company conformsIndenture have been duly authorized, as to legal matters, to executed and delivered by the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsNote Issuer;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants Notes applied for have been duly authorized by all necessary corporate action and executed and, when authenticated in accordance with the provisions of the Company Indenture and each delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Note Issuer, entitled to the benefits of the Indenture and the related Series Supplement;
(f) this Indenture, the Sale Agreement or the Subsequent Sale Agreement, as applicable, the Servicing Agreement and the agreement representing the Underwriter's Warrants is a related Series Supplement are valid and binding obligation agreements of the Company Note Issuer, enforceable in accordance with their respective terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or reorganization and other similar laws affecting the enforceability rights of creditors' rights creditors generally and subject to general principles of equity and(regardless of whether such enforceability is considered in a proceeding in equity or at law);
(I) to the extent that the provisions of Section 843 of the PU Code apply to the grant of a security interest by the Note Issuer in the Collateral pursuant to this Indenture, then upon the giving of value by the Note Trustee to the Note Issuer with respect to the Collateral, (A) this AgreementIndenture creates in favor of the Note Trustee a security interest in the rights of the Note Issuer in the Collateral, except as (B) such security interest is valid and enforceable against the Note Issuer and third parties (subject to the rights of any third parties holding security interests in such Collateral perfected in the manner described in Section 843 of the PU Code), and has attached, (C) such security interest is perfected, and (D) such perfected security interest is of first priority (subject to indemnify any statutory lien in favor of the holders of the rate reduction bonds issued pursuant to the Financing Order and contribution hereunder may be limited by applicable federal the trustee or state securities lawsthe representative for such holders pursuant to Section 843(g) of the PU Code).
(fII) The Underwriter's Warrants will conform To the extent that the provisions of Section 843 of the PU Code do not apply to the description thereof grant of a security interest by the Note Issuer in the Collateral pursuant to this Indenture, then upon the giving of value by the Note Trustee to the Note Issuer with respect to the Collateral, (A) this Indenture creates in favor of the Note Trustee a security interest in the rights of the Note Issuer in the Collateral, and such security interest is enforceable against the Note Issuer with respect to such Collateral, (B) such security interest is perfected, and (C) such perfected security interest is of first priority (subject to any statutory lien in favor of the holders of the rate reduction bonds issued pursuant to the Financing Order and the trustee or the representative for such holders pursuant to Section 843(g) of the PU Code);
(h) either (A) the Registration Statement covering the Notes and the Prospectus, and when issued and paid for in accordance with Certificates is effective under the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, Securities Act and, to the best knowledge of such counsel's knowledge and information, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the such Registration Statement or any amendment thereto has been issued by under the Commission, Securities Act and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, initiated or are pending or threatened or contemplated by the CommissionSEC or (B) the Notes or the Certificates are exempt from the registration requirements under the Securities Act;
(ki) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Note Issuer is not required, now and, if assuming that the Company Note Issuer uses the proceeds of the sale of the Firm Shares and Notes for the Option Shares solely as described purpose of acquiring Transition Property in accordance with the Prospectusterms of the Sale Agreement, will not be required as a result of following the sale of such Shares the Notes to the Trust and the Certificates to the underwriter, underwriters, placement agent or agents or similar Person, neither the Note Issuer nor the Trust will be required to be registered as an investment Company within the meaning of under the Investment Company Act of 1940, as amended;
(j) the Sale Agreement is a valid and binding agreement of the Seller enforceable against the Seller in accordance with its terms except as such enforceability may be subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(k) the Servicing Agreement is a valid and binding agreement of the Servicer enforceable against the Servicer in accordance with its terms except as such enforceability may be subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(l) upon the delivery of the fully executed Sale Agreement to the Note Issuer and the payment of the purchase price of the Transition Property by the Note Issuer to the Seller pursuant to the Sale Agreement, then (I) the transfer of the Transition Property by the Seller to the Note Issuer pursuant to the Sale Agreement conveys the Seller's right, title and interest in the Transition Property to the Note Issuer and will be treated under state law as an absolute transfer of all of the Seller's right, title, and interest in the Transition Property, other than for federal and state income and franchise tax purposes, (II) such transfer of the Transition Property is perfected, (III) such transfer has priority over any other assignment of the Transition Property and (IV) the Transition Property is free and clear of all liens created prior to its transfer to the Note Issuer pursuant to the Sale Agreement; and
(m) such counsel shall also state that they have no reason to believe that other matters as the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel Note Trustee 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3reasonably require.
Appears in 2 contracts
Samples: Indenture (Sdg&e Funding LLC a De Limited Liability Co), Indenture (Pg&e Funding LLC)
Opinion of Counsel. The Representative TRQ shall have received delivered at the Effective Date to Quality Resource Technologies an opinionopinion of its counsel dated as of date of the Effective Date in form and substance reasonably satisfactory to Quality Resource Technologies and its counsel, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
that (ai) the Company has been TRQ is a duly and validly organized and is validly existing as a corporation in good standing under the laws of the State of CaliforniaDelaware, and duly in each state where TRQ may be qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualificationcorporation, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the with full corporate power to own or lease its propertiescarry on the business in which it is engaged; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(cii) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each performance of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action consummation of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants transactions contemplated herein will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any terms or provisions of or cause a default under the terms Certificate of Incorporation or Bylaws of TRQ or, to TRQ’s said counsel best knowledge and provisions ofbelief any order, rule, or constitute a default underregulation of any court, governmental agency or body having jurisdiction over TRQ, or any of its activities, properties, any statute, indenture, mortgage, deed of trust, lease lease, loan agreement, security agreement, or other agreement or instrument, instrument known to such said counsel, to which the Company TRQ is a party or by which the Company it is bound or to which any of its properties are boundproperty is subject; (iii) no provision of the Certificate of Incorporation, Bylaws, minutes or share certificates of TRQ or, to TRQ’s said counsel’s best knowledge and belief, any contract to which TRQ is a party or otherwise bound or affected, prevents the TRQ Stockholders from delivering good, absolute, and marketable title to the TRQ Common Stock to Quality Resource Technologies as contemplated by this Agreement; (iv) TRQ is authorized by its Certificate of Incorporation to issue 200,000,000 shares of the TRQ Common Stock and 10,000,000 shares of preferred stock; (v) that as of the date of this Agreement, there were 100 shares of the TRQ Common Stock duly and validly issued and outstanding, fully paid, and non-assessable and no shares of preferred stock issued or outstanding; (vi) as of the Effective Date, all shares of the TRQ Common Stock were held by two TRQ Stockholders each of whom is an “accredited investors” as defined in the Securities Act, and subject to the terms of the Merger as of the Effective Date; (vii) to the best knowledge and belief of such counsel the issuance and sale of the TRQ Common Stock did not violate the Securities Act, or the Articles of Incorporation or Bylaws rules and regulations of the CompanySEC thereunder, or any statute applicable state securities or any judgmentBlue Sky Laws, decree, order, rule and that TRQ has no other authorized or regulation outstanding series or class of any court capital stock or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)securities; and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mviii) such counsel shall also state that they have has no reason knowledge of any litigation, proceeding, or governmental investigation or labor dispute pending or threatened against or relating to believe that the Registration StatementTRQ, its properties or businesses, except as of its effective date, contained any untrue statement of a material fact set forth herein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such in said opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 2 contracts
Samples: Merger Agreement (Quality Resource Technologies, Inc.), Merger Agreement (Quality Resource Technologies, Inc.)
Opinion of Counsel. The On the Closing Date, the Representative shall have received an opinionthe favorable opinion of Loeb, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the Company, substantially Representative and in form and substance satisfactory to MZRL to the effect that:
(ai) the The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of its any properties or the conduct character of its business operations requires such qualificationqualification or licensing, except where the failure to be so qualified qualify would not have a material adverse effect on the Company;.
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement All issued and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock securities of the Company (including, without limitation, the Placement Securities) have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable; the Shares holders thereof are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Company Certificate or Bylaws. The offers and sales of the outstanding Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from such registration requirements. The authorized and outstanding capital stock of the Company is as described in the Sale Preliminary Prospectus and the Prospectus. The Securities conform to the descriptions thereof contained in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
(iii) The Securities have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreementfor, will be validly issued, fully paid and nonassessablenon-assessable; the shares holders thereof are not and will not be subject to personal liability by reason of capital stock being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company have been duly authorized for quotation on arising by operation of law or under the Nasdaq SmallCap Market; no holders Certificate of outstanding shares Incorporation, as amended, or Bylaws of capital stock the Company. When issued, the Warrants, the Representative's Purchase Option and the Representative's Warrants will constitute valid and binding obligations of the Company are entitled as such to any preemptive or other rights to subscribe for any of issue and sell, upon exercise thereof and payment therefore, the Shares; number and no holders type of securities of the Company called for thereby and such Warrants, the Representative's Purchase Option and the Representative Warrants, when issued, in each case, are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of enforceable against the Company conformsin accordance with their respective terms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
except (ea) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting the enforceability of creditors' rights generally and subject to general principles generally, (b) as enforceability of equity and, with respect to this Agreement, except as rights to indemnify and any indemnification or contribution hereunder provision may be limited by applicable under the federal or and state securities laws.
, and (fc) The Underwriter's Warrants will conform that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the description thereof in equitable defenses and to the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms discretion of the agreement court before which any proceeding therefore may be brought. The certificates representing the Underwriter's Warrants, will constitute legal, valid Securities are in due and binding obligations of the Company entitled to the rights and benefits of such agreementproper form. The certificates representing the Representative Securities are in due and proper form. A sufficient number of shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued the Representative Warrants. The shares of Common Stock underlying the Warrants and the Representative Warrants will, upon such exercise in accordance with the terms of the agreement representing Warrants and the Underwriter's Representative Warrants at and payment of the exercise price therein providedthereof, will be duly and validly issued, fully paid and non- non-assessable and free will not have been issued in violation of or subject to preemptive rightsor, to such counsel's knowledge, similar rights that entitle or will entitle any person to acquire any securities from the Company upon issuance thereof.
(giv) no legal or governmental proceedings are pending to which the Company is a party or to which the property The Placement Warrants constitute valid and binding obligations of the Company is to issue and sell, upon exercise thereof and payment therefore, the number and type of securities of the Company called for thereby, and such Placement Warrants are enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. A sufficient number of shares of Common Stock have been reserved for issuance upon exercise of the Placement Warrants. The shares of Common Stock underlying the Placement Warrants will, upon exercise of the Warrants and payment of the exercise price thereof, be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to preemptive or, to such counsel's knowledge, similar rights that are entitle or will entitle any person to acquire any securities from the Company upon issuance thereof.
(v) The Company has full right, power and authority to execute and deliver this Agreement, the Warrant Agreement,, the Trust Agreement, the Placement Unit Purchase Agreement, the Financial Advisory Services Agreement, and the Escrow Agreement and to perform its obligations thereunder, and all corporate action required to be taken for the due and proper authorization, execution and delivery of this Agreement, the Warrant Agreement, the Services Agreements, the Trust Agreement, the Placement Unit Purchase Agreement and the Escrow Agreement and consummation of the transactions contemplated by the Underwriting Agreement, the Registration Statement, the Sale Preliminary Prospectus and the Prospectus and as described in the Registration Statement and the Prospectus have been duly and validly taken.
(vi) This Agreement, the Warrant Agreement, the Representative's Purchase Option, the Services Agreement, the Trust Agreement, the Placement Unit Purchase Agreement, the Financial Advisory Services Agreement, and the Escrow Agreement have each been duly and validly authorized and, when executed and delivered by the Company, constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally, (b) as enforceability of any indemnification or contribution provisions may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
(vii) The Insider Letters, the Placement Unit Purchase Agreement and the Escrow Agreement have been duly authorized, executed and delivered by the Initial Stockholders (or, if applicable, their affiliates) party thereto and constitute the valid and binding obligations of such Initial Stockholders enforceable against them in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (b) as enforceability of any indemnification or contribution provisions may be limited under the federal and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
(viii) The execution, delivery and performance of this Agreement, the Warrant Agreement, the Representative's Purchase Option, the Escrow Agreement, the Trust Agreement and, the Financial Advisory Services Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) to such counsel's knowledge, conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any mortgage, deed of trust, note, indenture, loan, contract, commitment or other agreement or instrument filed as an exhibit to the Registration Statement, (b) result in any violation of the provisions of the Amended and Restated Certificate of Incorporation or the Bylaws of the Company, or (c) to such counsel's knowledge, violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets.
(ix) The Registration Statement, the Sale Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and Regulations. The Securities and each agreement filed as an exhibit to the Registration Statement conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. No statute or regulation required to be described in the Registration Statement or the Prospectus and are is not described thereinas required, and, to the best knowledge nor are any contracts or documents of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit exhibits to the Registration Statement that is not so described therein or filed as required;.
(ix) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the The Registration Statement is effective under the Act. To such counsel's knowledge, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted oror are pending or threatened under the Act or applicable state securities laws. To such counsel's knowledge, neither the Company nor any of its affiliates has, prior to the knowledge date hereof, made any offer or sale of such counsel, any securities which are threatened required to be "integrated" pursuant to the Act or contemplated by the Commission;Regulations with the offer and sale of the Securities pursuant to the Registration Statement.
(kxi) Counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Representative at which the contents of the Registration Statement, the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as otherwise set forth in this opinion), no facts have come to the attention of such counsel which should lead them to believe that either the Registration Statement or the Prospectus and each or any amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statementthereto, as of its effective date, the date of such opinion contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided misleading (it being understood that in each case such counsel need not express any no opinion as with respect to the financial statements and schedules and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to data included in the Registration Statement or Prospectus).
(xii) To such counsel's knowledge, there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened against the Company that is required to be described in the Registration Statement.
(xiii) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any judicial, regulatory or other legal or governmental agency or body is required for the execution, delivery and performance of the Underwriting Agreement or consummation of the transactions contemplated by the Underwriting Agreement, the Registration Statement, the Sale Preliminary Prospectus and the Prospectus Prospectus, except for; (a) such as may be required under state securities or blue sky laws in connection with the Section 7.2 shall include any amendment purchase and distribution of the Units by the Underwriters (as to which such counsel need express no opinion); (b) such as have been made or supplement thereto at obtained under the date Securities Act; and (c) such as are required by the NASD.
(xiv) The statements under the captions "Description of Securities" and Item 14 of Part II of the Registration Statement, insofar as such opinion. Such counsel shall permit Xxxxxxxstatements constitute a summary of the legal matters, Mesereau & Leids LLP documents or proceedings referred to rely upon therein, fairly present the information called for with respect to such opinion in rendering its opinion in Section 7.3legal matters, documents and proceedings.
Appears in 2 contracts
Samples: Underwriting Agreement (Vector Intersect Security Acquisition Corp.), Underwriting Agreement (Vector Intersect Security Acquisition Corp.)
Opinion of Counsel. The Representative shall have received Unless otherwise specified in a Trust Issuance Certificate or Series Supplement, if any, an opinionOpinion of Counsel, portions of which may be delivered by counsel for the Note Issuer, portions of which may be delivered by counsel for the Grantee and the Servicer, and portions of which may be delivered by counsel for the Indenture Trustee, dated the Firm Closing Series Issuance Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially in each case subject to the customary exceptions, qualifications and assumptions contained therein, to the collective effect that:
(a) the Company Indenture has been duly organized qualified under the Trust Indenture Act and either the related Trust Issuance Certificate or Series Supplement, if any, has been duly qualified under the Trust Indenture Act or no such qualification of the Trust Issuance Certificate or Series Supplement is necessary;
(b) all instruments furnished to the Indenture Trustee pursuant to this Indenture conform to the requirements set forth in this Indenture and constitute all of the documents required to be delivered hereunder for the Indenture Trustee to authenticate and deliver the Notes applied for, and all conditions precedent provided for in this Indenture relating to the authentication and delivery of the Notes have been complied with;
(c) the Note Issuer has the power and authority to execute and deliver the Trust Issuance Certificate, the Series Supplement, if any, and this Indenture and to issue the Notes, and each of the Trust Issuance Certificate, the Series Supplement, if any, this Indenture, and the Notes have been duly authorized and the Note Issuer is duly formed and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing jurisdiction of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementorganization;
(d) the capital stock of Trust Issuance Certificate, the Company conformsSeries Supplement, as to legal mattersif any, to and the statements set forth under Indenture have been duly executed and delivered by the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsNote Issuer;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants Notes applied for have been duly authorized by all necessary corporate action and executed and, when authenticated in accordance with the provisions of the Company Indenture and each delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Note Issuer (subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity), entitled to the benefits of the Indenture and any related Trust Issuance Certificate or Series Supplement;
(f) this Indenture, the Grant Agreement or the Subsequent Grant Agreement as applicable, the Sale Agreement or the Subsequent Sale Agreement as applicable, the Servicing Agreement and the agreement representing the Underwriter's Warrants is a related Trust Issuance Certificate or Series Supplement, if any, are valid and binding obligation agreements of the Company Note Issuer, enforceable in accordance with their respective terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or reorganization and other similar laws affecting the enforceability rights of creditors' rights creditors generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal (regardless of whether such enforceability is considered in a proceeding in equity or state securities laws.at law);
(fg) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms Funding Law, the Funding Order (A) creates Intangible Transition Property in an amount not less than the amount, if any, specified in the Trust Issuance Certificate or Series Supplement, if any, which was vested by the Funding Order in the Grantee; (B) approves and authorizes the sale, transfer and assignment by the Grantee of such Intangible Transition Property to the Note Issuer; (C) approves the issuance and sale by the Note Issuer of the agreement representing Notes to be issued on such Series Issuance Date in an aggregate principal amount which equals or exceeds the Underwriter's Warrants, will constitute legal, valid and binding obligations initial Outstanding Amount of the Company entitled Notes referred to in (1) above; and (D) declares and establishes that such Notes are Transitional Funding Instruments within the rights and benefits meaning of such agreement. The shares of Common Stock Section 18-102 of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the CompanyFunding Law;
(h) no contract or other document is required to be described (A) at the time of the issuance of such Notes the lien of this Indenture in favor of the Holders in the Registration Statement or Intangible Transition Property attaches automatically; (B) such lien has been perfected in accordance with Section 18-107(c) of the Prospectus or Funding Law and in accordance with the Funding Order; (C) such lien is valid and enforceable against Illinois Power, the Servicer, the Grantee, the Note Issuer, and all third parties, including judgment lien creditors; and (D) such lien ranks prior to be filed as an exhibit any other lien which subsequently attaches to the Registration Statement that is not described therein or filed as requiredIntangible Transition Property;
(i) with respect to the issuanceNote Collateral other than the Intangible Transition Property, offering and sale upon the giving of value by the Indenture Trustee to the Note Issuer with respect to such Note Collateral, (A) this Indenture, together with any related Trust Issuance Certificate or Series Supplement, creates in favor of the Shares Indenture Trustee a security interest in the rights of the Note Issuer in such Note Collateral, and the Underwriter's Warrant by the Company pursuant to this Agreementsuch security interest is enforceable against Illinois Power, the compliance by Servicer, the Company with Grantee, the other provisions Note Issuer and all third parties, (B) such security interest is perfected, and (C) such perfected security interest is of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Companyfirst priority;
(j) either (A) the Registration Statement covering the Notes is effective under the ActSecurities Act and, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and such counsel's knowledge, no stop order suspending the effectiveness of the such Registration Statement or any amendment thereto has been issued by under the Commission, Securities Act and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, initiated or are pending or threatened or contemplated by the CommissionSEC or (B) the Notes are exempt from the registration requirements under the Securities Act;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Note Issuer is not required, now and, if assuming that the Company Note Issuer uses the proceeds of the sale of the Firm Shares and Notes for the Option Shares solely purpose of acquiring Intangible Transition Property in accordance with the terms of the Sale Agreement or the Subsequent Sale Agreement, as described in the Prospectusapplicable, will not be required as a result of following the sale of such Shares the Notes to the underwriter, underwriters, placement agent or agents or similar Person, neither the Note Issuer nor the Grantee will be required to be registered as an investment Company within the meaning of under the Investment Company Act of 1940, as amended;
(l) the Grant Agreement or Subsequent Grant Agreement, as applicable, is a valid and binding agreement of Illinois Power enforceable against Illinois Power in accordance with its terms and the Sale Agreement or Subsequent Sale Agreement as applicable, is a valid and binding agreement of the Grantee enforceable against the Grantee in accordance with its terms, except in each case as such enforceability may be subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(m) the Servicing Agreement is a valid and binding agreement of the Servicer enforceable against the Servicer in accordance with its terms except as such enforceability may be subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(n) pursuant to the Funding Order and upon the delivery of the fully executed Sale Agreement or Subsequent Sale Agreement as applicable to the Note Issuer and the payment of the purchase price of the Intangible Transition Property by the Note Issuer to the Grantee pursuant to the Sale Agreement or Subsequent Sale Agreement, as applicable, (i) the transfer of the Intangible Transition Property by the Grantee to the Note Issuer conveys the Grantee's right, title and interest in the Intangible Transition Property to the Note Issuer and will be treated under Illinois state law as an absolute transfer of all of the Grantee's right, title, and interest in the Intangible Transition Property, other than for federal and state income and franchise tax purposes, (ii) such transfer of the Intangible Transition Property is perfected, (iii) such transfer has priority over any other assignment of the Intangible Transition Property and (iv) the Intangible Transition Property is free and clear of all liens created prior to its transfer to the Note Issuer pursuant to the Sale Agreement; and
(mo) such counsel shall also state that they have no reason to believe that other matters as the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel Indenture Trustee 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3reasonably require.
Appears in 2 contracts
Samples: Indenture (Illinois Power Securitization Limited Liability Co), Indenture (Illinois Power Securitization Limited Liability Co)
Opinion of Counsel. The Representative shall have received Subscribers shall, upon purchase of the ------------------ Preferred Stock pursuant to this Agreement, receive an opinionopinion letter from Jeffer, dated the Firm Closing DateMangels, of XxxxxXxxxxx & Mamaro, X'XxxxxLLP ("Counsel"), Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for to the Company, substantially to the effect that:
that (a) the Company has been is duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
existing; (b) this Agreement, the Company has issuance of the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement Preferred Stock at Closing and the Prospectus; to enter into this Agreement and to carry out all issuance of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock Conversion Shares upon conversion of the Company; all of the shares of capital stock of the Company Preferred Stock have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized approved by all necessary required corporate action of the Companyaction, andand that all such securities, when issued and delivered to and paid for pursuant to this Agreementupon due issuance, will shall be validly issued, fully paid and nonassessablenon-assessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(dc) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement Rights Agreement, the Irrevocable Instructions to Transfer Agent and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, Escrow Agreement are valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise Company, enforceable in accordance with the terms their terms, except as enforceability of the agreement representing indemnification provisions may be limited by principles of public policy, and subject to laws of general application relating to bankruptcy, insolvency and the Underwriter's Warrants at relief of debtors and rules of laws governing specific performance and other equitable remedies; (d) based upon the price therein providedrepresentations and acknowledgments of Subscribers contained in Sections 2 and 3 hereof, the Preferred Stock has been, and the Conversion Shares will be duly and validly issuedbe, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is issued in a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement transaction that is not described therein or filed as required;
(i) exempt from the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
applicable state securities laws; (le) the Company Conversion Shares are authorized for listing on the Nasdaq market, including OTC Bulletin Board, where the Company's Common Stock is not requiredthen trading, and, if subject to notice of issuance; and (f) the Company uses the proceeds Certificate of the sale of the Firm Shares Designation has been duly authorized and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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 adopted by the Company and public officials. The foregoing opinion may has been or forthwith will be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3duly filed and/or recorded under applicable law.
Appears in 2 contracts
Samples: Regulation D Subscription Agreement (Euniverse Inc), Agreement and Plan of Reorganization (Euniverse Inc)
Opinion of Counsel. The Representative Subscriber shall have received an opinionthe opinion of Shumaker, dated the Firm Closing DateLoop & Kendrick, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for to the Company, substantially to the effect tx xxx xxfect that:
(a) the The Company has been is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of CaliforniaDelaware. Each of the Company's operating subsidiaries is a corporation duly incorporated, validly existing and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all the state of its incorporation. The Company is duly qualified as a foreign corporation to do business and is in good standing in the State of Florida and in each other jurisdictions where jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify or be so qualified licensed would not have a material adverse effect on the CompanyMaterial Adverse Effect;
(b) the The Company has the requisite corporate power and authority to own or lease execute, deliver and perform its properties; to conduct its business as described in obligations under this Subscription Agreement and each of the Registration Statement other Offering Documents, including issuance of the Notes and the Prospectus; to enter into this Agreement Warrants in accordance with the terms thereof. The execution and to carry out all delivery of the terms and provisions hereof to be carried out Offering Documents by it;
(c) the Company has an authorized capital stock as set forth under Company, the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock performance of the Company; all of the shares of capital stock obligations of the Company have been duly authorized thereunder and validly issued and are fully paid and nonassessable; the Shares consummation by it of the transactions contemplated therein have been duly authorized by all necessary corporate action of the Company, Board and, when issued and delivered to and paid for pursuant to this Agreementthe extent required, will be validly issued, fully paid and nonassessable; by the shares of capital stock shareholders of the Company (other than the Company's obligation to comply with NASD Marketplace Rules). The Offering Documents have been duly authorized for quotation on executed and delivered by the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock Company.
(c) The issuance and sale of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants Notes have been duly authorized. The Note Conversion Shares are duly authorized by all necessary corporate action of and reserved for issuance in accordance with the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the ProspectusOffering Documents, and when issued and paid for in accordance with the terms of Offering Documents, the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, Note Conversion Shares will be duly and validly issued, fully paid and non- non-assessable and free of all taxes, liens, charges and preemptive rightsrights with respect to the issue thereof.
(d) Based in part upon, and subject to the accuracy as to factual matters of, the Subscribers' representations in Article I of this Subscription Agreement, the Notes may be issued to the Subscribers pursuant to the Offering Documents without registration under the Securities Act of 1933, as amended.
(e) Other than the Company's obligation to comply with NASD Marketplace Rules, no authorization, approval, consent, filing or other order of any Federal or state governmental body, regulatory agency, self-regulatory organization or stock exchange or market, or to such counsel's knowledge, any court, is required to be obtained by the Company to enter into and perform its obligations under the Offering Documents or for the issuance and sale of the Notes as contemplated by the Offering Documents, except such as have been made or will be made by the Company.
(f) To such counsel's knowledge, there is no action, suit, proceeding, inquiry or investigation before or by any arbitrator, court, public board or body or any governmental agency or self-regulatory organization pending or threatened against the Company or any of the properties of the Company that might materially and adversely affect the Company or its business, operations, properties or financial condition, or that might materially adversely affect the transactions or other acts contemplated by the Offering Documents.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus The execution, delivery and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant performance by the Company pursuant to this Agreementof the Offering Documents, the consummation by the Company of the transactions contemplated thereby and the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do terms thereof does not require the consentviolate, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default underunder the Company's Certificate of Incorporation, as amended to date, the Company's Bylaws as currently in effect or any indentureother material contract, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to arrangement by which the Company is a party bound, or by which any applicable law, rule, regulation, judgment, order or decree actually known to the Company's counsel of any governmental agency or court having jurisdiction over the Company or any of its properties are boundor business, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than as set forth in the financial statements Schedules to this Agreement and other financial and statistical information contained therein, as than the Company's obligation to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3NASD Marketplace Rules.
Appears in 2 contracts
Samples: Bridge Subscription Agreement (Comdial Corp), Bridge Subscription Agreement (Priddy Robert L)
Opinion of Counsel. The Representative San West shall have received delivered at the Effective Date to Human BioSystems an opinionopinion of its counsel dated as of date of the Effective Date in form and substance reasonably satisfactory to Human BioSystems and its counsel, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
that (ai) the Company has been San West is a duly and validly organized and is validly existing as a corporation in good standing under the laws of the State of CaliforniaNevada, and duly in each state where San West may be qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualificationcorporation, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the with full corporate power to own or lease its propertiescarry on the business in which it is engaged; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(cii) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each performance of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action consummation of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants transactions contemplated herein will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any terms or provisions of or cause a default under the terms Articles of Incorporation or Bylaws of San West or, to San West’s said counsel best knowledge and provisions ofbelief any order, rule, or constitute a default underregulation of any court, governmental agency or body having jurisdiction over San West, or any of its activities, properties, any statute, indenture, mortgage, deed of trust, lease lease, loan agreement, security agreement, or other agreement or instrument, instrument known to such said counsel, to which the Company San West is a party or by which the Company it is bound or to which any of its properties property is subject; (iii) no provision of the Articles of Incorporation, Bylaws, minutes or share certificates of San West or, to San West’s said counsel’s best knowledge and belief, any contract to which San West is a party or otherwise bound or affected, prevents the San West Stockholders from delivering good, absolute, and marketable title to the San West Common Stock to Human BioSystems as contemplated by this Agreement; (iv) San West is authorized by its Articles of Incorporation to issue 25,000,000 shares of the San West Common Stock; (v) that as of the date of this Agreement, there were 4,136,836 shares of the San West Common Stock duly and validly issued and outstanding, fully paid, and non-assessable; (vi) as of the Effective Date, all shares of the San West Common Stock were held by 33 San West Stockholders all of whom are bound“accredited investors” as defined in the Securities Act, and subject to the terms of the Merger as of the Effective Date; (vii) to the best knowledge and belief of such counsel the issuance and sale of the San West Preferred Stock and the San West Common Stock did not violate the Securities Act, or the Articles of Incorporation or Bylaws rules and regulations of the CompanySEC thereunder, or any statute applicable state securities or any judgmentBlue Sky Laws, decree, order, rule and that San West has no other authorized or regulation outstanding series or class of any court capital stock or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)securities; and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mviii) such counsel shall also state that they have has no reason knowledge of any litigation, proceeding, or governmental investigation or labor dispute pending or threatened against or relating to believe that the Registration StatementSan West, its properties or businesses, except as of its effective date, contained any untrue statement of a material fact set forth herein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such in said opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 2 contracts
Samples: Merger Agreement (Human Biosystems Inc), Merger Agreement (Human Biosystems Inc)
Opinion of Counsel. The Representative Placement Agent shall have received an opinionreceive the opinion of acceptable counsel to the Company, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyClosing(s), substantially to the effect that:
(aA) the Company has been duly organized and is validly existing as a corporation and in good standing under the laws of the State of CaliforniaColorado, has all requisite corporate power and authority necessary to own or hold its respective properties and conduct its business and is duly qualified or licensed to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions where in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify or be so qualified licensed would not have a material adverse effect on the CompanyMaterial Adverse Effect;
(bB) each of this Agreement, the Company has Notes, the corporate power to own or lease its properties; to conduct its business as described in Warrants, the Registration Statement Agent's Warrants, the Fund Escrow Agreement, the Subscription Agreements, the Advisory Agreement and the Prospectus; M/A Agreement has been duly and validly authorized, executed and delivered by the Company, and is the valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to enter into this Agreement any applicable bankruptcy, insolvency or other laws affecting the rights of creditors generally and to carry out all of the terms and provisions hereof to be carried out by itgeneral equitable principles;
(cC) the Company has an authorized authorized, issued and outstanding capital stock of the Company as of the date hereof (before giving effect to the transactions contemplated by this Agreement) is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the ProspectusOffering Documents. To such counsel's knowledge, there are no outstanding warrants, options, warrantsagreements, convertible securities, preemptive rights or other commitments pursuant to which the Company is, or other rights calling for the issuance ofmay become, and no commitment, plan or arrangement obligated to issue or register, any share shares of its capital stock or other securities of the Company; all Company other than as set forth in the Offering Documents. All of the issued shares of capital stock of the Company have been duly authorized issued in connection with and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, subsequent to the statements set forth under the heading "DESCRIPTION OF SECURITIES" reverse merger in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants January1998 have been duly and validly authorized and reserved for issuance upon exercise issued, are fully paid and nonassessable and to such counsel's knowledge have not been issued in violation of the Underwriter's Warrants preemptive rights of any securityholder of the Company. The offers and when issued upon sales of such exercise securities were either registered under the Securities Act and applicable state securities laws or exempt from such registration requirements;
(D) assuming (i) the accuracy of the information provided by the Subscribers in accordance the Subscription Documents and (ii) that the Placement Agent has complied with the requirements of section 4(2) of the Securities Act (and the provisions of Regulation D promulgated thereunder), the issuance and sale of the Units is exempt from registration under the Securities Act and Regulation D promulgated thereunder;
(E) neither the execution and delivery of this Agreement, the Subscription Agreement, the Advisory Agreement or the M/A Agreement, nor compliance with the terms hereof or thereof, nor the consummation of the agreement representing transactions herein or therein contemplated, nor the Underwriterissuance of the Notes, the Warrants or the Agent's Warrants at Warrants, has, nor will, conflict with, result in a breach of, or constitute a default under the price therein providedArticles of Incorporation or By-laws of the Company, will be duly and validly issuedor any material contract, fully paid and non- assessable and free of preemptive rights.
(g) no legal instrument or governmental proceedings are pending document known to such counsel to which the Company is a party party, or to by which the property of the Company is subject that are required to be described in the Registration Statement it or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected tois bound or violate any applicable law, orrule, if determined adversely regulation, judgment, order or decree known to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results us of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities agency or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which court having jurisdiction over the Company or any of its properties or business;
(F) to the best of such counsel's knowledge, there are boundno claims, actions, suits, investigations or the Articles of Incorporation proceedings before or Bylaws of the Companyby any arbitrator, or any statute or any judgmentcourt, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted instrumentality pending or, to the knowledge of such counsel's knowledge, are threatened against or affecting the Company or involving the properties of the Company which might materially and adversely affect the business, properties or financial condition of the Company or which might materially adversely affect the transactions or other acts contemplated by this Agreement or the validity or enforceability of this Agreement, except as set forth in or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedOffering Documents; and
(mG) such counsel shall also state that they has reviewed the Offering Documents and nothing has come to the attention of such counsel to cause them to have no reason to believe that the Registration Statement, as of its effective date, Offering Documents contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for the Prospectusfinancial statements, notes thereto and other financial information and statistical data contained therein, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as no opinion).
(H) there have been no claims asserted against the Company relating to the financial statements and other financial and statistical information contained therein. In rendering potential infringement of or conflict with any patents, trademarks, copyrights or trade secrets of others; such counsel has conducted a search for existing United States patents with claims that might cover the Company's technology and, in such counsel's 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. The foregoing opinion may be limited to the laws of the Company's technology does not infringe any United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3States patents.
Appears in 2 contracts
Samples: Agency Agreement (Commonwealth Associates /Bd), Agency Agreement (Commonwealth Associates /Bd)
Opinion of Counsel. The Representative Buyer shall have received an opiniondelivered to the Issuer ------------------ a written opinion of its counsel, dated as of the Firm Closing Date, of Xxxxxin form and substance satisfactory to Issuer and its counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been duly organized and Buyer is validly existing as a corporation duly organized, validly existing, and in good standing under the laws of the State of California, California and duly qualified has all requisite corporate power to transact business as a foreign corporation and is in good standing perform its obligations under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companythis Agreement;
(b) All corporate proceedings required by law or by the Company has provisions of this Agreement to be taken by Buyer on or before the corporate power to own or lease its properties; to conduct its business as described Closing Date in connection with the Registration Statement execution and the Prospectus; to enter into delivery of this Agreement and to carry out all the consummation of the terms transactions contemplated by this Agreement have been duly and provisions hereof to be carried out by itvalidly taken;
(c) Buyer has the Company has an authorized capital stock as set forth under corporate power and authority to sell the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital Warrants and/or common stock of the Company; all of Buyer for the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementconsideration set forth herein;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the Every consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation order of any court or other governmental authority agency or any arbitrator known to such counsel body that is required for the consummation by Buyer of the transactions contemplated by this Agreement has been obtained and applicable to will be in effect on the CompanyClosing Date;
(je) The Warrants of Buyer to be delivered at the Closing have been duly executed and, when delivered as provided in this Agreement, will constitute a legal, valid, and binding obligation of Buyer, enforceable in accordance with its terms except as limited by bankruptcy laws, insolvency laws, and other similar laws affecting the rights of creditors generally;
(f) The offer and sale of the Warrants to the Issuer and the immediate sale and transfer thereof by the Escrow Agent or any other party shall be registered and qualified or shall be exempt from registration under applicable federal, California, and all applicable state laws.
(g) The Registration Statement is filed with the SEC, the State of California, and all applicable states for the common stock of the buyer underlying the Warrants is, or will be at the Closing Date, effective under the Securities Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner applicable California and within the time period required by Rule 424(b); all other applicable state laws, and no stop order suspending the use of the prospectus therein or suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, or are threatened pending or contemplated by the Commission;
(k) the threatened. The Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) prospectus comply as to form in all material respects with the applicable requirements of the Securities Act and the Rules and Regulations;
(l) the Company is do not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained contain any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that misleading.
(h) Buyer has filed all reports required by the ProspectusExchange Act within the periods required by the Exchange Act and complied with its obligations under the Exchange Act, as and none of its date Exchange Act reports or the date of such opinion, included or includes filings contain any untrue statement of a material fact or omitted or omits omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light therein not misleading.
(i) The consummation of the circumstances under transaction contemplated by this Agreement does not violate or contravene any of the provisions of any charter, bylaw, or resolution of Buyer or of any indenture, agreement, judgment, or order to which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained thereinBuyer is a party or by which Buyer is bound. In rendering any such its opinion, such counsel for Buyer may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers governmental authorities and on opinions of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3associate counsel.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale (Knickerbocker L L Co Inc), Agreement of Purchase and Sale (Knickerbocker L L Co Inc)
Opinion of Counsel. The Representative Management Sellers shall have received an opinionthe opinion of Olshan Grundman Frome Rosenxxxxx & Xxxxxxx LLP, dated cxxxxxx xx NGTX, xxxxd the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for in form reasonably satisfactory to the CompanyManagement Sellers, substantially to the effect that:
that (ai) the Company has been NGTH is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
Delaware; (bii) the Company NGTH has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement, the Registration Rights Agreement, the Employment Agreements and the Escrow Agreement (collectively, the "Basic Documents") and to carry out all consummate the transactions contemplated hereby and thereby and this Agreement does not require the approval of the terms and provisions hereof to be carried out by it;
NGTH's shareholders; (c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(eiii) the execution and delivery of each of this Agreement the Basic Documents and the agreement representing consummation of the Underwriter's Warrants have transactions contemplated hereby and thereby has been duly authorized by all necessary requisite corporate action taken on the part of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
NGTH; (fiv) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel's knowledge, no such proceedings have been threatened against consent, waiver, approval, withholding of disapproval, order or authorization of, registration, declaration or filing with, any court or other federal, state, county, or local governmental authority is required at or prior to the Company Effective Time by or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, NGTH in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering connection with NGTH's execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement and the agreement representing the Underwriter's Warrants and or the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authorityhereby, except for such as have been obtained consents, waivers, approvals, withholdings of disapproval, orders, authorizations, registrations, declarations and such filings as may be required under state applicable securities laws and as set forth on the Schedules to this Agreement; (v) none of the execution, delivery or blue sky lawsperformance of the Basic Documents by NGTH, or to the best of such counsel's knowledge, conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws of the Company, NGTH or any statute Contracts; (vi) there is no action, suit or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted proceeding pending or, to the knowledge best of such counsel's knowledge, threatened, against or affecting NGTH before any court or arbitrator or governmental body or agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a Material Adverse Effect on NGTH, which could adversely effect the present or prospective ability of NGTH to perform its obligations under this Agreement or the other Basic Documents or which in any manner draws into question the validity or enforceability of this Agreement or the other Basic Documents; and (vii) to the best of such counsel's knowledge during the period commencing on November 12, 1998 and ending on the date hereof, no person has made any claim that they are threatened the owner of any shares of capital stock of NGTH or contemplated by had the Commission;
right to receive capital stock of NGTH, which claim or right is not reflected in NGTH's corporate records. Although such counsel has not undertaken to investigate or verify independently and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the SEC Reports, nothing has come to such counsel's attention that causes such counsel to believe that the SEC Reports (k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and notes thereto and other financial financial, statistical and statistical information contained thereinaccounting data or schedules included therein or omitted therefrom, and matters related to intellectual property, as to which such counsel need we express no opinion) comply ), as to form in all material respects amended or supplemented, at the time such SEC Reports were filed with the applicable requirements of the Act Securities and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as Exchange Commission contained an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Merger Agreement (Next Generation Technology Holdings Inc)
Opinion of Counsel. The Representative Subsidiary and Vendor shall have received an opiniondelivered to the Purchaser on the date of the Closing the opinion of Xxxxxxx Xxxxxx, counsel to Subsidiary and Vendor dated the Firm Closing Dateas of such date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California in form and substancesatisfactory to counsel for the CompanyPurchaser, substantially to the effect that:
(a) the Company has been duly organized Subsidiary and is Vendor are corporations validly existing as a corporation and in good standing under the laws of the State their respective jurisdictions of Californiaincorporation, with all requisite corporate power and authority to own, lease, license, and use their property and assets and to carry on the business in which they are now engaged.
(b) Subsidiary is duly qualified to transact the business as a foreign corporation in which it ia engaged and is in good standing under as a corporation in France; officers of Subsidiary have submitted to such counsel a certificate, a copy of which is attached to their opinion as Exhibit, stating that, in their opinion, France is the laws only jurisdiction in which the real or personal property or assets owned, leased, licensed, or wed or business conducted by Subsidiary is material to the operations of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;Subsidiary.
(c) the Company has an The authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all Subsidiary is as net form I in Section 1.02 of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issuedexcept for such changes as are set forth in such opinion, fully paid as to each of which such counsel shall opine that it is permitted by the provisions of this Agreement; and nonassessable; all the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; Subsidiary am validly authorized, validly issued, fully paid, and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;non assessable.
(d) the The authorized and outstanding capital stock of, and ownership by Vendor of the Company conformsSubsidiary as set forth in Exhibit A to this Agreement [except for such changes as are set forth in such opinion, as to legal matterseach of which such counsel shall opine that it is permitted by the provisions of this Agreement]; are validly authorized, validly issued, fully paid, and non assessable and owned of record and, to the statements set forth under actual knowledge of such counsel, beneficially by Vendor, in each case to the heading "DESCRIPTION OF SECURITIES" in the Prospectus in actual knowledge of such counsel free and clear of all material respects;liens, seourity interests, pledges, charges, encumbrances, stockholders’ agreements, and voting trusts.
(e) All necessary corporate proceedings of Subsidiary and Vendor have been duly taken to authorize the execution execution, delivery and delivery of each performance of this Agreement by Subsidiary and the agreement representing the Underwriter's Warrants have Vendor.
(f) Vendor has all requisite power and authority to execute, deliver, and perform this Agreement, and this Agreement has been duly authorized authorized, executed and delivered by all necessary corporate action of Vendor, constitutes the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid legal, valid, and binding obligation of the Company except as such enforceability may be limited by Subsidiary and Vendor, and (subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar and other laws affecting the enforceability of creditors' ’ rights generally generally) is enforceable as to Subsidiary and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for Vendor in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsits terms.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus The execution, delivery, and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions performance of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do by Vendor will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of any term of Subsidiary’s certificate of incorporation or of its bylaws; and the terms execution, delivery, and provisions performance of this Agreement by Vendor will not violate, result in a breach of, conflict with, or constitute entitle any party to terminate or call a default under, entitle any indenture, mortgage, deed of trust, lease or other agreement or instrument, known party to rights and privileges that such counsel, party was not entitled to which the Company is a party or by which the Company or any of its properties are boundreceive immediately before this Agreement was executed under, or create any obligation on the Articles part of Incorporation or Bylaws Subsidiary that it was not obligated to pay immediately before the Agreement was executed under.
(h) After reasonable investigation, such counsel have no actual knowledge of the Companyany consent, or any statute or any judgmentauthorization, decreeapproval, order, rule license, certificate, or regulation permit of or from, or declaration or filing with, any court federal, state, local, or other governmental authority or any arbitrator known to court or other tribunal which is required of Vendor or Subsidiary, for the execution, delivery, or performance of this Agreement by Subsidiary or Vendor, except as set forth in Sections 4.10, 4.11, 4.12, 4.13 and 4.14.
(i) After reasonable investigation, such counsel and applicable have no actual knowledge of my litigation, arbitration, governmental or other proceeding (formal or informal), or investigation pending or threatened with respect to Subsidiary or Vendor, or any their respective business, properties, or assets that (i) can reasonably be expected to result in any materially adverse change in the Company;financial condition, results of operations, business, properties, assets, liabilities, or future prospects of Subsidiary or (ii) seeks to prohibit or otherwise challenge the consummation of the transactions contemplated by this Agreement, or to obtain substantial damages with respect thereto, except as disclosed in this Agreement.
(j) The offer, sale, and delivery of the Registration Statement is effective Acquired Shares under the Actcircumstances contemplated by this Agreement constitute exempted transactions under French securities laws, Securities Act and registration of those shares under the Securities Act is not required in connection with any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement offer, sale, or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge delivery of such counsel, are threatened or contemplated by the Commission;shares.
(k) Such other matters as counsel for the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Purchaser m y reasonably request.
Appears in 1 contract
Opinion of Counsel. The Representative USFloral shall have received an opinionopinion from ------------------ Hilburn, Calhoon, Xxxxxx, Xxxxxxxx & Xxxxxxx Ltd., counsel to the Stockholders, dated the Firm Closing Merger Effective Date, of Xxxxxin form and substance satisfactory to USFloral, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to each Company:
(ai) the each Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing state of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyincorporation;
(bii) to the knowledge of such counsel, the Company is duly authorized, qualified and licensed under all applicable laws, regulations, ordinances or orders of public authorities to carry on its business in the places and in the manner as now conducted;
(iii) the authorized and outstanding capital stock of the Company has is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(civ) to the knowledge of such counsel, the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(dv) the capital stock of this Agreement has been duly authorized, executed and delivered by the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the Stockholders and constitutes a valid and binding agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Stockholders enforceable in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (X) as the same may be subject to the effect of general principles of equity and, with respect and (Y) that no opinion need be expressed as to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.the enforceability of indemnification provisions included herein;
(fvi) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, except to the extent set forth on Schedule 6.20, no such Company is in violation of or default under any law or regulation, or under any order of any court, commission, board, bureau, agency or instrumentality wherever located and there are no claims, actions, suits or proceedings have been pending, or threatened against or affecting the Company, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(vii) to the knowledge of such counsel, except to the extent set forth on Schedule 6.14, no Company or with respect to is in default under any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case material contracts or in the aggregate, result in any material adverse change in the business, prospects, financial condition agreements or results has received notice of operations of the Companysuch default;
(hviii) no contract notice to, consent, authorization, approval or order of any court or governmental agency or body or to the knowledge of such counsel of any other document third party is required in connection with the execution, delivery or consummation of this Agreement by any Stockholders or for the transfer to be described in USFloral of the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;Company Stock; and
(iix) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions execution of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated do obligations hereunder will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions ofof the Company's Articles of Incorporation or the by-laws of the Company or to the knowledge of such counsel of any lease, instrument, license, permit or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are Stockholder is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any . Such opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
Opinion of Counsel. The Representative shall Metermaster will have received an opinionopinion addressed to Metermaster, dated the Firm Closing Date, of XxxxxHartxx, X'XxxxxXxxxxxx & Xmerx XXX, Xxxxxxxx & Xxxxxxxx LLPcounsel to Transmation, Los Angelesin form and substance reasonably satisfactory to Metermaster, California counsel for the Company, substantially to the effect that:
: (ai) the Company has been each of Transmation and Sub is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State its jurisdiction of Californiaincorporation, and duly qualified each has all requisite corporate power and authority to transact business as a foreign corporation own, lease and is in good standing under the laws of all other jurisdictions where the ownership or leasing of operate its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect and carry on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in now conducted; (ii) each of Transmation and Sub has the Registration Statement requisite corporate power and the Prospectus; authority and has taken all corporate action necessary to enter into execute and deliver this Agreement and to carry out all consummate the Merger; (iii) this Agreement has been duly and validly authorized, executed and delivered by each of the terms Transmation and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance ofSub, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is constitutes a legal, valid and binding obligation of the Company each of Transmation and Sub, enforceable against it in accordance with its terms, except as that such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of now or hereafter in effect relating to creditors' rights or remedies generally and subject to general equitable principles (regardless of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof whether enforcement is sought in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants a proceeding at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case law or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
equity); and (h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(iiv) the issuance, offering execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement by Transmation and the agreement representing the Underwriter's Warrants by Sub does not, and the consummation of the other transactions herein Merger and therein contemplated do not require the consentfulfillment of the obligations and undertakings hereunder will not, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation any Violation of any provision of: (A) the certificates of the terms and provisions of, incorporation or constitute a default under, bylaws of Transmation or of Sub; (B) any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator Contract known to such counsel and applicable to the Company;
Transmation, Sub or any of their respective assets; or (jC) the Registration Statement is effective under the Actany Legal Requirement applicable to Transmation, Sub or any required filing of the Prospectus pursuant to Rule 424(b) has been made their respective assets; except, in the manner case of Contracts and within Legal Requirements, for Violations which could not reasonably be expected, individually or in the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted oraggregate, to have any adverse effect on the knowledge validity or enforceability of such counsel, are threatened this Agreement or contemplated by a material adverse effect on the Commission;
(k) the Registration Statement operations or financial condition of Transmation and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required its Subsidiaries taken as a result of the sale of whole; provided, however, that such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as will only extend to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as to matters effect of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References jurisdictions in which such firm is licensed to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.practice; and
Appears in 1 contract
Opinion of Counsel. The Representative On the date hereof and promptly five Business Days’ prior written notice in connection with an issuance of Notes registered on Form SF-3, the Asset Representations Reviewer shall have received provide an opinionOpinion of Counsel, dated addressed to the Firm Closing DateServicer, the Indenture Trustee, the Owner Trustee, the Issuer, each Rating Agency and the representative or representatives of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially underwriters of the Notes to the effect that:
(ai) the Company has been duly organized and Asset Representations Reviewer is validly existing and in good standing as a corporation in good standing under the laws of the State of California, [ ] and duly qualified has the power and authority to transact the business as a foreign corporation in which it is now engaged and is in good standing under the laws of to enter into and to perform all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyobligations under this Agreement;
(bii) the Company has execution, delivery and performance by the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into Asset Representations Reviewer of this Agreement and to carry out all the consummation by the Asset Representations Reviewer of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares services contemplated hereby have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementaction;
(diii) this Agreement has been duly and validly executed and delivered by the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsAsset Representations Reviewer;
(eiv) the execution and delivery of each by the Asset Representations Reviewer of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein services contemplated do hereby will not require the consentconflict with, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default underunder (A) the bylaws of the Asset Representations Reviewer, (B) to the best of such counsel’s knowledge after due inquiry and investigation, any material indenture, contract, lease, mortgage, deed of trust, lease trust or other instrument of agreement or instrument, known to such counsel, to which the Company Asset Representations Reviewer is a party or by which the Company Asset Representations Reviewer is bound or any (C) to the best of its properties are boundsuch counsel’s knowledge after due inquiry and investigation, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, writ, injunction, decree, orderorder or ruling of any court or governmental authority having jurisdiction over the Asset Representations Reviewer;
(v) the execution and delivery by the Asset Representations Reviewer of this Agreement and the consummation of the services contemplated hereby will not result in a violation of any applicable statute, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to which the Company;
Asset Representations Reviewer is subject that would have a material adverse effect on (jA) the Registration Statement is effective under the Act, any required filing ability of the Prospectus pursuant Asset Representations Reviewer to Rule 424(bperform its obligations under this Agreement or (B) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness business, operations, assets, liabilities or financial condition of the Registration Statement or any amendment thereto has been issued by the Commission, Asset Representations Reviewer and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required its subsidiaries as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedwhole; and
(mvi) such counsel shall also state that they to the best of counsel’s knowledge after due inquiry and investigation, the Asset Representations Reviewer is not a party to any pending action or proceeding before any court, governmental agency or arbitrator which (A) purports to affect the legality, validity, binding effect or enforceability of this Agreement, or (B) could have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make adverse effect on (1) the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light ability of the circumstances Asset Representations Reviewer to perform its obligations under which they were madethe Agreement or (2) the business, not misleading; provided that in each case such counsel need not express any opinion as to the operations, assets, liabilities or financial statements and other financial and statistical information contained therein. 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 condition of the Company Asset Representations Reviewer and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3subsidiaries as a whole.
Appears in 1 contract
Samples: Asset Representations Review Agreement (First National Funding LLC)
Opinion of Counsel. The Representative PIF on behalf of the Acquiring Fund shall have received an opiniona favorable opinion of Ropes & Gray LLP, counsel to xxx Acquired Fund for the transactions contemplated hereby, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Date and in a form satisfactory to the effect thatAcquiring Fund, to the following effect:
(ai) the Company has been duly WM SAM is a limited liaxxxity company organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of California, Massachusetts and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of WM SAM, except where and the failure to be so qualified would not have Acquirex Xund is a material adverse effect on separate series of WM SAM constituted in axxxrdance with the Companyapplicable provisions of the 1940 Act and the LLC Agreement and Bylaws of WM SAM;
(bii) This Xxreement has been authorized, executed and delivered on behalf of WM SAM and the Company has the corporate power to own or lease its properties; to conduct its business as described in Acquixxx Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by PIF and the agreement representing Acquiring Fund, is the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of WM SAM and the Company Acquired Xxnd enforceable against WM SAM and thx Xcquired Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants will conform Acquired Fund has the power to sell, assign, transfer and deliver the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required Assets to be described in the Registration Statement or the Prospectus and are not described thereintransferred by it hereunder, and, upon consummation of the transactions contemplated hereby, the Acquired Fund will have transferred such Assets to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the CompanyAcquiring Fund;
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement did not, and the agreement representing the Underwriter's Warrants performance by WM SAM and the consummation Acquired Xxnd of their obligations hereunder will not, violate the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration WM SAM LLC Agreement or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawsXxlaws, or conflict with or result in a breach or violation any provision of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, counsel to which WM SAM or the Company Acquired Xxxd is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement it is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted bound or, to the knowledge of such counsel, are threatened result in the acceleration of any obligation or contemplated the imposition of any penalty under any material agreement or any judgment or decree to which WM SAM or the Acquired Fund is a party or by the Commissionwhich it is bound;
(kv) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by WM SAM and the Acquired Xxnd of the transactions contemplated by this Agreement, except such as have been obtained;
(vi) Such counsel does not know of any legal or governmental proceedings relating to WM SAM or the Acquired Xxxd existing on or before the date of mailing of the Prospectus/ Proxy Statement included in the Registration Statement and referred to in Section 5.2(b) or the Prospectus and each amendment or supplement thereto (Closing Date required to be described in each case, other than the financial statements and other financial and statistical information contained therein, Registration Statement which are not described as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulationsrequired;
(lvii) WM SAM is registered wixx the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered SEC as an investment Company within company under the meaning of the Investment Company Act of 1940, as amended1940 Act; and
(mviii) To the knowledge of such counsel shall also state that they have counsel, except as has been disclosed in writing to PIF, no reason litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date WM SAM or the date Acquired Xxxd or any of their properties or assets or any person whom WM SAM or the Acquired Xund may be obligated to indemnify in connection with such opinionlitigation, included proceeding or includes any untrue statement investigation, and each of WM SAM and the Acquired Xxnd is not a material fact party to or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as subject to the financial statements provisions of any order, decree or judgment of any court or governmental body, which materially and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as adversely affects its business or its ability to matters of fact, to consummate the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Principal Investors Fund Inc)
Opinion of Counsel. The Representative USFLORAL shall have received an opinionopinion from ------------------ Grunsky, Ebey, Xxxxxx & Xxxxxx, APC, counsel to the STOCKHOLDERS, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to USFLORAL, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to each COMPANY:
(ai) the Company COMPANY has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing state of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyincorporation;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened the COMPANY is duly authorized, qualified and licensed under all applicable laws, regulations, ordinances or contemplated by orders of public authorities to carry on its business in the Commissionplaces and in the manner as now conducted;
(kiii) the Registration Statement authorized and outstanding capital stock of the Prospectus COMPANY is as represented by the STOCKHOLDERS in this Agreement and each amendment or supplement thereto (share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements violation of the Act and the Rules and Regulationspreemptive rights of any stockholder;
(liv) to the Company is knowledge of such counsel, the COMPANY does not requiredhave any outstanding options, andwarrants, if calls, conversion rights or other commitments of any kind to issue or sell any of its capital stock;
(v) this Agreement has been duly authorized, executed and delivered by the Company uses COMPANY and the proceeds STOCKHOLDERS and constitutes a valid and binding agreement of the sale COMPANY and the STOCKHOLDERS enforceable against them in accordance with its terms except as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement and other similar laws relating to or affecting the rights of creditors and except (X) as the same may be subject to the effect of general principles of equity and (Y) that no opinion need be expressed as to the enforceability of indemnification provisions included herein;
(vi) except to the extent set forth on Schedules 6.10 and 6.19, there are no claims, actions, suits or proceedings pending, or threatened against or affecting any COMPANY, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(vii) to the knowledge of such counsel, no notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other third party is required in connection with the execution, delivery or consummation of this Agreement by any STOCKHOLDERS or for the transfer to USFLORAL of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedCOMPANY Stock; and
(mviii) such counsel shall also state that they have no reason to believe that the Registration Statement, as execution of its effective date, contained this Agreement and the performance of the obligations hereunder will not violate or result in a breach or constitute a default under any untrue statement of a material fact the terms or omitted to state provisions of any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as COMPANY's Articles of its date Incorporation or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the by-laws of the United Statesany COMPANY or of any lease, the laws of the State of California and the General Corporation Law of the State of Californiainstrument, license, permit or any other agreement to which any COMPANY is a party or by which any COMPANY or any STOCKHOLDER is bound. References to the Registration Statement and the Prospectus in the Section 7.2 Such opinion shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
Opinion of Counsel. The Representative Parent shall have received an opinionopinion from Xxxxxx & Xxxxxxx, P.C., counsel to the Company and the Stockholders, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to the Parent, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to the Company:
(a) the Company has been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;Connecticut.
(b) the authorized and outstanding capital stock of the Company has is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(c) to the knowledge of such counsel, the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(d) the capital stock of this Agreement has been duly authorized, executed and delivered by the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the Stockholders and constitutes a valid and binding agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Stockholders enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (i) as the same may be subject to the effect of general principles of equity and, with respect and (ii) that no opinion need be expressed as to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.the enforceability of indemnification provisions included herein;
(fe) The Underwriter's Warrants will conform except to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andextent set forth on SCHEDULE 3.16, to the best knowledge of such counsel, there are no such claims, actions, suits or proceedings have been pending, or threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to affecting the Company, would, in any individual case at law or in the aggregateequity, result in or before or by any material adverse change in the businessfederal, prospectsstate, financial condition municipal or results of operations of the Companyother governmental department, commission, board, bureau, agency or instrumentality wherever located;
(hf) no contract notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other document third party is required to be described in connection with the Registration Statement execution, delivery or consummation of this Agreement by any Stockholders or for the Prospectus or to be filed as an exhibit transfer to the Registration Statement that is not described therein or filed as requiredParent of the Company Stock;
(ig) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions execution of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated do obligations hereunder will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions ofof the Company's Certificate of Incorporation or the bylaws of the Company or of any lease, instrument, license, permit or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are Stockholder is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mh) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as other matters incident to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely matters set forth herein as to matters of fact, to reasonably required by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Parent.
Appears in 1 contract
Opinion of Counsel. The Representative At the Closing Date, GSM shall have received deliver or cause to be delivered to IMNF an opinionopinion (in form and content satisfactory to IMNF), dated the Firm Closing Date, of XxxxxAugust 1,1997, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyGSM, substantially to the effect thatfollowing effects:
(a) the Company has been That GSM is a corporation duly organized and is validly existing as a corporation and in good standing under the laws of the State of CaliforniaNew Jersey, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power entitled to own or lease its properties; properties and to conduct carry on its business as described and in the Registration Statement places where such properties are now owned, or leased, or such businesses are now conducted, and, insofar as is known to such counsel, has fully complied with all federal, state and local laws with respect to its operation and the Prospectus; conduct of its business.
(b) That GSM has full power and authority to enter into make, execute, deliver and perform this Agreement in accordance with its terms; this Agreement has been duly authorized and to carry out all approved by proper corporate action of GSM and constitutes the valid and legally binding obligation of GSM in accordance with its terms. All of the terms shares of stock currently outstanding as reflected in paragraph 3.2 of this Agreement are validly issued and provisions hereof outstanding and are currently not subject to be carried out by it;any lien, pledge, encumbrance, restriction or claim, and the shareholders, and Principal have full right and authority to transfer the same pursuant to this transaction. Upon assignment and delivery of the share certificate(s) to IMNF, it will take title thereto free and clear of any lien, pledge, encumbrance, charge, agreement or claim.
(c) That all acts required by law or by the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each provisions of this Agreement to be taken by GSM and Principal in connection with the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of transactions provided for in this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise taken, and, insofar as is known to such counsel, all conditions to the obligation of IMNF to consummate the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsAgreement have been fulfilled.
(gd) no legal or governmental proceedings are pending to which That such counsel has examined the Company is a party or to which the property of the Company is subject that are required to be leases described in the Registration Statement attached schedules hereto and has concluded that such leases are valid, binding and enforceable.
(e) That such counsel does not know, and has no reason to believe, that any action, suit, proceeding or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been investigation is pending or threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, GSM which might result in any material adverse change in the businesscondition (financial or otherwise) or business of GSM (other than those referred to in Paragraph 3.12 hereof), prospectsor which questions the legality, financial condition validity or results propriety of operations this Agreement or of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus any actions taken or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company taken pursuant to or in connection with this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Opinion of Counsel. The Representative Buyer shall have received an opinionthe opinion of Gersten, dated Savage & Kaplowitz, XXX, coxxxxx to XXXX, xxxed the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for in form reasonably satisfactory to the CompanyBuyer, substantially to the effect that:
: (ai) the Company has been HCCI is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
Delaware; (bii) the Company HCCI has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and the Escrow Agreement and to carry out all consummate the transactions contemplated hereby and thereby; (iii) the execution and delivery of this Agreement and the Escrow Agreement and the consummation of the terms transactions contemplated hereby and provisions hereof to be carried out by it;
(c) the Company thereby has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary requisite corporate action taken on the part of HCCI; (iv) this Agreement and the Escrow Agreement have been duly executed and delivered by HCCI and (assuming that it is a valid and binding obligation of the Companyother parties thereto) is a valid and binding obligation of HCCI enforceable against it in accordance with its terms, and, when issued subject to customary exceptions; (v) the Escrow Agreement has been duly executed and delivered by the Management Sellers and (assuming that it is a valid and binding obligation of the other parties thereto) is a valid and binding obligation of the Management Sellers enforceable against them in accordance with its terms, subject to and paid for pursuant to this Agreementcustomary exceptions; (vi) the shares of Common Stock of HCCI are duly authorized, will be validly issued, fully paid and nonassessable; the shares of capital stock (vii) none of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive execution, delivery or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each performance of this Agreement and or the agreement representing the Underwriter's Warrants have been duly authorized Escrow Agreement by all necessary corporate action HCCI of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andtransactions herein contemplated, to the best knowledge of such counsel's knowledge, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws of the Company, HCCI or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)Contracts; and (viii) there is no stop order suspending the effectiveness of the Registration Statement action, suit or any amendment thereto has been issued by the Commissionproceeding pending, and no proceedings for that purpose have been instituted or, to the knowledge best of its knowledge, threatened, against or affecting HCCI before any court or arbitrator or governmental body, agency or official (or any basis thereof known to such counsel) in which there is a reasonable possibility of an adverse decision which may result in a Material Adverse Effect on HCCI, are threatened which could adversely affect the present or contemplated by prospective ability of HCCI to perform its obligations under this Agreement or the Commission;
Escrow Agreement or which in any manner draws into question the validity or enforceability of this Agreement or the Escrow Agreement. Although such counsel has not undertaken to investigate or verify independently and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Information Statement delivered to HCCI's shareholders in connection with the Merger (k) the Registration "Information Statement"), nothing has come to such counsel's attention that causes such counsel to believe that the Information Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and notes thereto and other financial financial, statistical and statistical information contained thereinaccounting data or schedules included therein or omitted therefrom, and matters related to intellectual property, as to which such counsel need we express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940), as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statementamended or supplemented, as of its effective date, contained any contains an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Merger Agreement (Next Generation Technology Holdings Inc)
Opinion of Counsel. The Representative Investor shall have received receive an opinion, dated opinion ------------------ letter from counsel to the Firm Company (updated where applicable) prior to each Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyInitial Shares and Secondary Shares, substantially and prior to the Closing Date of the first Put by the Company to the effect that:
(ai) the The Company has been duly organized is incorporated and is validly existing as a corporation in good standing under the laws jurisdiction of the State of California, and its incorporation. The Company and/or its subsidiaries are duly qualified to transact do business as a foreign corporation and is in good standing under in all jurisdictions where, to such counsel's knowledge, the laws of all other jurisdictions where the ownership Company and/or its subsidiaries owns or leasing of its properties leases properties, maintains employees or the conduct of its business requires such qualificationconducts business, except where for jurisdictions in which the failure to be so qualified qualify would not have a material adverse effect on the Company;, and has all requisite corporate power and authority to own its properties and conducts its business.
(bii) To such counsel's knowledge, there is no action, proceeding or investigation pending, or threatened against the Company which might result, either individually or in the aggregate, in any material adverse change in the business or financial condition of the Company, except as has the corporate power to own or lease its properties; to conduct its business as been described in the Registration Statement Reports.
(iii) To such counsel's knowledge, the Company is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality, except as has been described in the Reports.
(iv) To such counsel's knowledge, there is no action, suit, proceeding or investigation by the Company currently pending, except as has been described in the Reports.
(v) The Initial Shares and Secondary Shares which shall be issued, have been duly authorized and, when the Prospectus; to enter into Series D or E Convertible Preferred Stock Certificate has been duly executed and delivered in the manner provided in this Agreement and to carry out all of the terms and provisions hereof to paid for in accordance with this Agreement, will be carried out by it;
(c) the Company has an authorized capital stock as set forth validly issued under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock laws of the Company; all 's state of incorporation.
(vi) This Agreement, the issuance of the shares securities hereunder, and upon conversion and exercise of the Series D or E Convertible Preferred Stock, have been duly approved by all required corporate action and that all such securities, upon execution and delivery of the certificate evidencing such security in the manner provided in the Private Equity Line Of Credit Agreement or the certificate evidencing the Warrant (the "Warrant Certificate") and payment therefor in the accordance with the Private Equity Line Of Credit Agreement or the Warrant Certificate, shall be validly issued and outstanding, fully paid and nonassessable.
(vii) The issuance of the Initial Shares, Secondary Shares, and Put Shares will not violate the applicable listing agreement between the Company and any securities exchange or market on which the Company's securities are listed.
(viii) The authorized capital stock of the Company consists of 20,000,000 shares of Common Stock, $0.01 par value per share, of which 8,843,571 are outstanding, 1,000,000 shares of non-voting Preferred Stock, $0.01 par value, of which 250,000 have been designated Series A Convertible PIK Preferred Stock (all of which are outstanding), 550,000 have been designated Series B Convertible Preferred Stock (460,000 of which are outstanding), 55,000 have been designated Series C Convertible Preferred Stock (all of which are outstanding) and pursuant to the transactions contemplated by this Agreement, ten of which will be designated Series D Preferred Stock (3 of which will be outstanding upon the consummation of the Closing for the Initial Shares) and ten of which will be designated Series E Preferred Stock. All issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. On February 11, 1997, the Board of Directors of the Company rescinded an earlier resolution authorizing an increase of the number of authorized shares of Common Stock from 20,000,000 to 40,000,000 and the number of the authorized shares of Preferred Stock from 1,000,000 to 2,000,000, and authorized, subject to the approval of the stockholders of the Company, the increase of the number of authorized shares of Common Stock from 20,000,000 to 60,000,000 and the number of the authorized shares of Preferred Stock from 1,000,000 to 3,000,000.
(ix) The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the Securities Exchange Act of 1934, as amended, and, to such counsel's knowledge, the Company has timely, subject to permitted extensions, filed all the reports (without confirming as to the completeness or accuracy of such reports) required to be filed pursuant to Sections 13(a) or 15(d) of such Act for a period of at least twelve months preceding the date hereof.
(x) The Company has the requisite corporate power and authority to enter into the Agreement, Registration Rights Agreement, the Escrow Agreement and the Warrant Certificate and to sell and deliver the Initial Shares, Secondary Shares, and Put Shares and the Common Stock to be issued upon the conversion or exercise, as the case may be, as described in the Agreement, the applicable Certificate of Designation, or the Warrant Certificate; each of the Shares have Agreement, Registration Rights Agreement, the Escrow Agreement and the Warrant Certificate has been duly and validly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of by the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; to our knowledge, no holders approval of outstanding shares of capital stock of the Company are entitled as such to any preemptive governmental or other rights to subscribe body is required for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this the Agreement, Registration Rights Agreement, the Escrow Agreement or the Warrant Certificate by the Company or the consummation of the transactions contemplated thereby; each of the Agreement, Registration Rights Agreement, the Escrow Agreement and the agreement representing the Underwriter's Warrants have Warrant Certificate has been duly authorized and validly executed and delivered by all necessary corporate action and on behalf of the Company Company, and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation agreement of the Company Company, enforceable in accordance with its terms, except as such (i) enforceability may be limited by general equitable principles, bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar other laws affecting the enforceability of creditors' creditors rights generally generally, (ii) to compliance with federal, state and subject foreign securities laws and (iii) to general principles of equity andprovisions providing for indemnification or contribution, with respect in each case, as to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities lawswhich no opinion is expressed.
(fxi) The UnderwriterTo such counsel's Warrants will conform to knowledge, the description thereof in execution, delivery and performance of the Agreement, the Registration Statement Rights Agreement, the Escrow Agreement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant Certificate by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated its obligations thereunder do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in will not constitute a breach or violation of any of the terms and provisions of, or constitute a default underunder or conflict with or violate any provision of (i) the Company's Certificate of Incorporation or By-Laws, (ii) any indenture, mortgage, deed of trust, lease agreement or other agreement or instrument, known to such counsel, instrument to which the Company is a party or by which it or any of its property is bound, (iii) any applicable statute or regulation, (iv) or any judgment, decree or other order of any court or governmental body having jurisdiction over the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel property. It is expressly understood and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects confirmed with the applicable requirements of Investors that counsel has relied on the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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 officialswith respect to the disclosure regarding the Company. The foregoing Investor shall only be entitled to receive this opinion may be limited to of counsel on one occasion during each ninety (90) day period following the laws Closing Date of the United Statesfirst Put. For example, the laws Investor shall not be entitled to receive an opinion of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus Company counsel in the Section 7.2 shall include any amendment or supplement thereto at event the date Closing Date for a subsequent Put is within ninety (90) days after the Closing Date for the preceding Put. However, the Investor is entitled to an opinion of such opinion. Such Company counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3the event the Closing Date for the second Put is more than ninety (90) days after the first Put.
Appears in 1 contract
Samples: Private Equity Line of Credit Agreement (Ashton Technology Group Inc)
Opinion of Counsel. The Representative Parent shall have received an opinionopinion from Xxxxxxxx, Xxxx, Green & XxXxxxx, counsel to the Company and the Stockholders, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to the Parent, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to the Company:
(a) the Company has been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;Nevada.
(b) the authorized and outstanding capital stock of the Company has is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(c) to the knowledge of such counsel, the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(d) the capital stock of this Agreement has been duly authorized, executed and delivered by the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the Stockholders and constitutes a valid and binding agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Stockholders enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (i) as the same may be subject to the effect of general principles of equity and, with respect and (ii) that no opinion need be expressed as to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.the enforceability of indemnification provisions included herein;
(fe) The Underwriter's Warrants will conform except to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andextent set forth on SCHEDULE 3.16, to the best knowledge of such counsel, there are no such claims, actions, suits or proceedings have been pending, or threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to affecting the Company, would, in any individual case at law or in the aggregateequity, result in or before or by any material adverse change in the businessfederal, prospectsstate, financial condition municipal or results of operations of the Companyother governmental department, commission, board, bureau, agency or instrumentality wherever located;
(hf) no contract notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other document third party is required to be described in connection with the Registration Statement execution, delivery or consummation of this Agreement by any Stockholders or for the Prospectus or to be filed as an exhibit transfer to the Registration Statement that is not described therein or filed as requiredParent of the Company Stock;
(ig) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions execution of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated do obligations hereunder will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions ofof the Company's Certificate of Incorporation or the bylaws of the Company or of any lease, instrument, license, permit or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are Stockholder is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mh) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as other matters incident to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely matters set forth herein as to matters of fact, to reasonably required by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Bizness Online Com)
Opinion of Counsel. The Representative shall have received an opinionregistered holder of this Warrant, dated by his acceptance hereof, agrees that prior to any transfer of this Warrant or any transfer of the Firm Closing Daterelated Warrant Shares, said holder will deliver to the Company a statement setting forth either said holder's intention with respect to the disposition of Xxxxxthis Warrant or any Warrant Shares, X'Xxxxxor the intention of said holder's prospective transferee with respect to his acquisition of this Warrant or of said Warrant Shares (whichever is involved in such transfer), Xxxxxxxx & Xxxxxxxx LLPin either such case, Los Angelestogether with a signed copy of the opinion of said holder's counsel, California such opinion and counsel for to be reasonably acceptable to the Company, substantially as to (i) the necessity or non-necessity for registration under the Acts in connection with such exercise or such transfer and (ii) whether or not the effect of such exercise or transfer would disqualify the Company as a qualified real estate investment trust pursuant to the effect thatREIT Qualification Rules. The following provisions shall then apply:
(aA) If, in the Company has been duly organized and is validly existing as a corporation in good standing opinion of said holder's counsel, the proposed transfer of this Warrant or the proposed transfer of such Warrant Shares may be effected without (i) registration under the laws Acts of this Warrant or such Warrant Shares, as the State of Californiacase may be, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock disqualification of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for as a qualified real estate investment trust pursuant to the REIT Qualification Rules, then the registered holder of this Agreement, will Warrant shall be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have transfer this Warrant or such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for Warrant Shares in accordance with the terms statement of intention delivered by said holder to the agreement representing Company.
(B) If, in the Underwriter's Warrantsopinion of said counsel, will constitute legaleither the proposed transfer of this Warrant or the proposed transfer of such Warrant Shares may not be effected without (i) registration under the Acts of this Warrant or such Warrant Shares, valid and binding obligations as the case may be, or (ii) disqualification of the Company as a qualified real estate investment trust pursuant to the REIT Qualification Rules, the registered holder of this Warrant shall not be entitled to the rights and benefits of transfer this Warrant or such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained thereinShares, as to which the case may be, until such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company registration is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact effected or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3disqualification remedied.
Appears in 1 contract
Samples: Warrant Agreement (Host Funding Inc)
Opinion of Counsel. The Representative MSI shall have received delivered to IDW and the Sellers an opinionopinion of MSI's counsel in the form of Exhibit C, dated the Firm Closing DateEffective Time, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(ai) the Company has been MSI is a corporation duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the CompanyOregon;
(bii) the Company MSI has the corporate power to own or lease carry on its properties; to conduct its business businesses as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by itnow being conducted;
(ciii) the Company This Agreement has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Companyauthorized, and, when issued executed and delivered to by MSI and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of MSI, enforceable in accordance with its terms, except to the Company except as such enforceability may be extent that enforcement is limited by applicable bankruptcy, reorganization, insolvency, reorganizationmoratorium, moratorium or similar laws affecting the enforceability of creditors' rights and remedies generally or by general equitable principles (and subject to general principles of equity and, with respect to this Agreement, except excepting specific performance as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companyremedy);
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as requiredMSI has taken all corporate action necessary for its due performance under this Agreement;
(iv) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant delivery by the Company pursuant to this Agreement, the compliance by the Company with the other provisions MSI of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do hereby will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, MSI's Certificate of Incorporation or Bylaws or, to such counsel's knowledge after inquiry and based upon information provided by MSI, constitute a default underunder or give rise to a right of termination, acceleration, or cancellation by any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to under which the Company is a party or by which the Company MSI or any of its properties are bound, bound or the Articles of Incorporation or Bylaws of the Company, or violate any statute or any judgment, decree, court order, rule writ or regulation decree of any court or other governmental authority or any arbitrator known to such counsel and injunction applicable to the CompanyMSI;
(jvi) the Registration Statement is effective under the ActSuch counsel does not know, after inquiry of MSI, of any required filing of the Prospectus pursuant actions, suits or other legal proceedings or investigations pending or threatened against, relating to Rule 424(b) has been made or materially adversely affecting MSI, except as disclosed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the CommissionPublic Filings;
(kvii) The authorized and, to such counsel's best knowledge after inquiry, outstanding capitalization of MSI is as set forth in Schedule 3.03 of the Registration Statement Agreement. All of the outstanding shares of MSI's capital stock are validly issued, fully-paid and non-assessable, without preemptive rights, and to the Prospectus and each amendment best of our knowledge after inquiry, there are no outstanding subscriptions, options, rights, warrants or supplement thereto other transfer agreements (in each casewhether oral or written), other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form set forth in all material respects with the applicable requirements Schedule 3.03 of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Morrow Snowboards Inc)
Opinion of Counsel. The Representative shall have received Unless otherwise specified in a Series ------------------ Supplement, an opinionOpinion of Counsel, portions of which may be delivered by counsel for the Note Issuer, portions of which may be delivered by counsel for the Seller and the Servicer, and portions of which may be delivered by counsel for the Trust, dated the Firm Closing Series Issuance Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially in each case subject to the customary exceptions, qualifications and assumptions contained therein, to the collective effect that:
(a) the Company Indenture has been duly organized qualified under the Trust Indenture Act and either the Series Supplement has been duly qualified under the Trust Indenture Act or no such qualification of the Series Supplement is necessary;
(b) all instruments furnished to the Note Trustee pursuant to this Indenture conform to the requirements set forth in this Indenture and constitute all of the documents required to be delivered hereunder for the Note Trustee to authenticate and deliver the Notes applied for, and all conditions precedent provided for in this Indenture relating to the authentication and delivery of the Notes have been complied with;
(c) the Note Issuer has the power and authority to execute and deliver the Series Supplement and this Indenture and to issue the Notes, and each of the Series Supplement and this Indenture, and the Notes have been duly authorized and the Note Issuer is duly formed and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing jurisdiction of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementorganization;
(d) the capital stock of Series Supplement and the Company conformsIndenture have been duly authorized, as to legal matters, to executed and delivered by the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsNote Issuer;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants Notes applied for have been duly authorized by all necessary corporate action and executed and, when authenticated in accordance with the provisions of the Company Indenture and each delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Note Issuer, entitled to the benefits of the Indenture and the related Series Supplement;
(f) this Indenture, the Sale Agreement or the Subsequent Sale Agreement, as applicable, the Servicing Agreement and the agreement representing the Underwriter's Warrants is a related Series Supplement are valid and binding obligation agreements of the Company Note Issuer, enforceable in accordance with their respective terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or reorganization and other similar laws affecting the enforceability rights of creditors' rights creditors generally and subject to general principles of equity and(regardless of whether such enforceability is considered in a proceeding in equity or at law);
(I) to the extent that the provisions of Section 843 of the PU Code apply to the grant of a security interest by the Note Issuer in the Collateral pursuant to this Indenture, then upon the giving of value by the Note Trustee to the Note Issuer with respect to the Collateral, (A) this AgreementIndenture creates in favor of the Note Trustee a security interest in the rights of the Note Issuer in the Collateral, except as (B) such security interest is valid and enforceable against the Note Issuer and third parties (subject to the rights of any third parties holding security interests in such Collateral perfected in the manner described in Section 843 of the PU Code), and has attached, (C) such security interest is perfected, and (D) such perfected security interest is of first priority (subject to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.any statutory lien in favor of the holders of the rate reduction bonds issued pursuant to the Financing Order
(fII) The Underwriter's Warrants will conform To the extent that the provisions of Section 843 of the PU Code do not apply to the description thereof grant of a security interest by the Note Issuer in the Collateral pursuant to this Indenture, then upon the giving of value by the Note Trustee to the Note Issuer with respect to the Collateral, (A) this Indenture creates in favor of the Note Trustee a security interest in the rights of the Note Issuer in the Collateral, and such security interest is enforceable against the Note Issuer with respect to such Collateral, (B) such security interest is perfected, and (C) such perfected security interest is of first priority (subject to any statutory lien in favor of the holders of the rate reduction bonds issued pursuant to the Financing Order and the trustee or the representative for such holders pursuant to Section 843(g) of the PU Code);
(h) either (A) the Registration Statement covering the Notes and the Prospectus, and when issued and paid for in accordance with Certificates is effective under the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, Securities Act and, to the best knowledge of such counsel's knowledge and information, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the such Registration Statement or any amendment thereto has been issued by under the Commission, Securities Act and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, initiated or are pending or threatened or contemplated by the CommissionSEC or (B) the Notes or the Certificates are exempt from the registration requirements under the Securities Act;
(ki) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Note Issuer is not required, now and, if assuming that the Company Note Issuer uses the proceeds of the sale of the Firm Shares and Notes for the Option Shares solely as described purpose of acquiring Transition Property in accordance with the Prospectusterms of the Sale Agreement, will not be required as a result of following the sale of such Shares the Notes to the Trust and the Certificates to the underwriter, underwriters, placement agent or agents or similar Person, neither the Note Issuer nor the Trust will be required to be registered as an investment Company within the meaning of under the Investment Company Act of 1940, as amended; and;
(mj) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of Sale Agreement is a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light valid and binding agreement of the circumstances under which they were madeSeller enforceable against the Seller in accordance with its terms except as such enforceability may be subject to bankruptcy, not misleading; provided that insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in each case a proceeding in equity or at law);
(k) the Servicing Agreement is a valid and binding agreement of the Servicer enforceable against the Servicer in accordance with its terms except as such counsel need not express any opinion as enforceability may be subject to bankruptcy, insolvency, reorganization and other similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(l) upon the delivery of the fully executed Sale Agreement to the financial statements Note Issuer and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as to matters the payment of fact, the purchase price of the Transition Property by the Note Issuer to the extent such counsel deems properSeller pursuant to the Sale Agreement, on certificates of responsible officers then (I) the transfer of the Company and public officials. The foregoing opinion may be limited Transition Property by the Seller to the laws Note Issuer pursuant to the Sale Agreement conveys the Seller's right, title and interest in the Transition Property to the Note Issuer and will be treated under state law as an absolute transfer of all of the United StatesSeller's right, the laws of the State of California title, and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus interest in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit XxxxxxxTransition Property, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.other than for federal and state income and franchise tax purposes,
Appears in 1 contract
Samples: Indenture (Sce Funding LLC)
Opinion of Counsel. The Representative Company shall have received furnished to the Representative an opinion, dated the Firm Effective Date, the Closing Date and, if applicable, the Over-Allotment Closing Date, of Xxxxxaddressed to the Representative, X'Xxxxxfrom Bearman Talesnick & Clowdus, Xxxxxxxx & Xxxxxxxx LLPP.X., Los Angeles0000 17xx Xxxxet, California counsel for the CompanySuitx 0000, substantially Xxxxxx, Xxxxxxxx, 00000-0000, xxxxxxx xx xxx Xxxxxny, to the effect thatthat based upon a review by them of the Registration Statement, Prospectus, the Company's certificate of incorporation, by-laws, and relevant corporate proceedings and contracts, and examination of such laws they deem necessary and such other investigation by such counsel as they deem necessary to express such opinion:
(ai) the The Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of CaliforniaWyoming, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power and authority to own or lease its properties; properties and to conduct carry on its business as described in the Registration Statement and Prospectus.
(ii) The Company is duly qualified and in good standing as a foreign corporation authorized to do business in all jurisdictions in which the Prospectus; to enter into this Agreement and to carry out all character of the terms properties owned or held under lease or the nature of the business conducted requires such qualification and provisions hereof in which the failure to be carried out by it;qualify would have a materially adverse effect on the business of the Company.
(ciii) The authorized and outstanding capital stock of the Company has an authorized capital stock is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and Prospectus; the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital common stock of the Company, the Units, the Common Stock, the Warrants, and the Underwriter's Unit Purchase Warrants conform to the statements concerning them in the Registration Statement and Prospectus; all of the shares of capital outstanding common stock of the Company contains no preemptive rights; the Units and Underwriter's Unit Purchase Warrants have been been, and the Warrant Shares issuable upon exercise of the Warrants, and the securities issuable upon exercise of the Underwriter's Unit Purchase Warrants will be, duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued upon issuance thereof and delivered to and paid for pursuant to payment therefor in accordance with this Agreement, will be validly issued, fully paid and nonassessable; , and will not be subject to the shares preemptive rights of capital stock any shareholder of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;Company.
(div) the capital stock of the Company conformsThe Warrants, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Unit Purchase Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise comprising part of the Underwriter's Unit Purchase Warrants have been duly and validly authorized and are valid and binding obligations of the Company enforceable in accordance with their respective terms.
(v) A sufficient number of shares of common stock has been duly reserved for issuance upon the exercise of the Warrants, the Underwriter's Unit Purchase Warrants and the Warrants issuable upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsUnit Purchase Warrants.
(gvi) To such counsel's knowledge, no legal consents, approvals, authorizations or governmental proceedings are pending to which the Company is a party orders of agencies, officers or to which the property of the Company is subject that other regulatory authorities are required to be described in for the Registration Statement valid authorization, issuance or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares Units, the Common Stock, the Warrants and the Underwriter's Warrant Unit Purchase Warrants contemplated by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except as such as have been obtained and are in full force and effect under the Act and such as may be required under applicable state securities or blue sky lawslaws in connection with the purchase and distribution of such securities by the Representative and the Underwriting Group and the approval of the underwriting terms and compensation by the NASD.
(vii) The issuance and sale of the Units, or the Underwriter's Unit Purchase Warrants, and the consummation of the transactions herein contemplated and compliance with the terms of this Agreement will not conflict with or result in a breach or violation of any of the terms and terms, conditions, or provisions of, of or constitute a default underunder the certificate of incorporation, or by-laws of the Company, or, to their knowledge, any note, indenture, mortgage, deed of trust, lease or other agreement or instrument, instrument known to such counsel, counsel without any specific investigation to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, property is bound or any statute existing law (provided this paragraph shall not relate to federal or any judgment, decreestate securities laws), order, rule rule, regulation, writ, injunction, or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and applicable to of any government, governmental instrumentality, agency, body, arbitration tribunal, or court, domestic or foreign, having jurisdiction over the Company;Company or its property.
(jviii) On the Registration Statement is effective under the Act, any required filing basis of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required a reasonable inquiry by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by including his participation in conferences with representatives of the Commission;
(k) Company and its accountants at which the contents of the Registration Statement and the Prospectus and each amendment or supplement thereto (in each caserelated matters were discussed, other than and without expressing any opinion as to the financial statements and or other financial and statistical information data contained therein: (A) nothing has come to such counsel's attention which leads them to believe that the Registration Statement and the Prospectus, as amended or supplemented by any amendments or supplements thereto made by the Company prior to which such counsel need express no opinion) the Closing Date, do not comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
Act; (lB) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares nothing has come to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason their attention which leads them to believe that the Registration StatementStatement or the Prospectus, as of its effective dateamended or supplemented by any such amendments or supplements thereto, contained contains any untrue statement of a material fact or omitted omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading; (C) they do not know of any contract or other document required to be described in or filed as an exhibit to the Registration Statement which is not so described or filed; and (D) the Registration Statement has become effective under the Act, and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by the ProspectusCommission.
(ix) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company.
(x) The Company is not in default of any of the contracts, as licenses, leases or agreements to which it is a party, and the offering of the Units, the Common Stock, the Warrants and the Underwriter's Unit Purchase Warrants will not cause the Company to become in default of any of its date contracts, licenses, leases or agreements.
(xi) The Company is not currently offering any securities for sale except as described in the date Registration Statement.
(xii) Counsel has no knowledge of such opinionany promoter, included affiliate, parent or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light subsidiaries of the circumstances Company except as are described in the Registration Statement and Prospectus.
(xiii) To the knowledge of counsel, and without making any statement as to title, the Company owns all properties described in the Registration Statement as being owned by it; the properties are free and clear of all liens, charges, encumbrances or restrictions except as described in the Registration Statement; all of the leases, subleases and other agreements under which they were madethe Company holds its properties are in full force and effect; the Company is not in default under any of the material terms or provisions of any of the leases, not misleadingsubleases or other agreements; provided that and there are no claims against the Company concerning its rights under the leases, subleases and other agreements and concerning its right to continued possession of its properties.
(xiv) To the knowledge of counsel, the Company possesses the required licenses, certificates, authorizations or permits issued by the appropriate federal, state and local regulatory authorities necessary to conduct its business as described in each case the Registration Statement and to retain possession of its properties. Counsel is unaware of any notice of any proceeding relating to the revocation or modification of any of these licenses, certificates, authorizations or permits having been received by the Company.
(xv) To the knowledge of counsel, the Company has paid all taxes which are shown as due and owing on the financial statements included in the Registration Statement and Prospectus.
(xvi) The Units, Common Stock and Warrants of the Company are qualified for trading on the NASDAQ system upon completion of the distribution of the Units by the respective participant. As to all factual matters including without limitation the issuance of stock and warrant certificates and receipt of payment therefor, the states in which the Company transacts business, the adoption of resolutions reflected by the Company's minute book and the like, such counsel need not express may rely on the certificate of an appropriate officer of the Company. Counsel's opinion as to the validity and enforceability of any and all contracts and agreements referenced herein may exclude any opinion as to the financial statements and other financial and statistical information contained therein. In rendering validity or enforceability of any indemnification or contribution provisions thereof, or as the validity or enforceability of 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. The foregoing opinion contract or agreement may be limited by bankruptcy or other laws relating to the laws of the United States, the laws of the State of California or affecting creditors' rights generally and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3by equitable principles.
Appears in 1 contract
Samples: Underwriting Agreement (Double Eagle Petroleum & Mining Co)
Opinion of Counsel. The Representative UniCapital shall have received an opinionopinion from a counsel to the Stockholder agreed to by the parties, dated the Firm Closing Merger Effective Date, of Xxxxxin form and substance satisfactory to UniCapital, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:, with respect to the Company is effective under all applicable state laws, UniCapital, to the effect that the Merger of Newco with and into the Company (including, without limitation, the Company);
(a) the Company has been duly organized and is validly existing as a corporation and in good standing under the laws of the State state of CaliforniaNew York;
(b) to the knowledge of such counsel, the Company is duly authorized, qualified and duly qualified licensed under all applicable laws, regulations, ordinances or orders of public authorities to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of carry on its business requires such qualificationin the places and in the manner now conducted, except where to the extent that the failure to be so qualified in good standing would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; is as represented by the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" Stockholder in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits share of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have stock has been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, is fully paid and non- assessable nonassessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property was not issued in violation of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge preemptive rights of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companystockholder;
(hd) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened the Company does not have any outstanding options, warrants, calls, conversion rights or contemplated by the Commissionother commitments of any kind to issue or sell any of its capital stock;
(ke) this Agreement has been duly authorized, executed and delivered by the Registration Statement Company and the Prospectus Stockholder and each amendment or supplement thereto (constitutes a valid and binding agreement of the Company and the Stockholder enforceable in each caseaccordance with its terms, other than the financial statements except as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement and other financial similar laws relating to or affecting the rights of creditors and statistical information contained therein, except (i) as the same may be subject to the effect of general principles of equity and (ii) that no opinion need be expressed as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements enforceability of the Act and the Rules and Regulationsindemnification provisions included herein;
(lf) upon consummation of the Merger contemplated by this Agreement, UniCapital will receive good title to the Company Stock, free and clear of all liens, security interests, pledges, charges, voting trusts, equities, restrictions, encumbrances and claims of every kind;
(g) to the knowledge of such counsel, except to the extent set forth on Schedule 6.23, the Company is not requiredin violation of or default under any law or regulation, andor under any order of any court, if commission, board, bureau, agency or instrumentality wherever located and there are no claims, actions, suits or proceedings pending, or threatened against or affecting the Company, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(h) to the knowledge of such counsel, except to the extent set forth on Schedule 6.17, the Company uses is not in default under any of its material contracts or agreements or has received notice of such default;
(i) no notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other third party is required in connection with the proceeds execution, delivery or consummation of this Agreement by the Stockholder or for the transfer to UniCapital of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedStock; and
(mj) such counsel shall also state that they have no reason to believe that the Registration Statement, as execution of its effective date, contained this Agreement and the performance of the obligations hereunder will not violate or result in a breach or constitute a default under any untrue statement of a material fact the terms or omitted to state any material fact required to be stated therein or necessary to make provisions of the statements therein not misleading or that the Prospectus, as of its date Company's charter documents or the date of such opinion, included bylaws or includes any untrue statement of a material fact Contract or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements Lease listed on Schedules 6.17 and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.36.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
Opinion of Counsel. The Representative Parent shall have received an opinionopinion from Thuillez, Ford, Gold & Xxxxxxx, LLP, counsel to the Company and the Stockholders, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to the Parent, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to the Company:
(a) the Company has been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;New York.
(b) the authorized and outstanding capital stock of the Company has is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(c) to the knowledge of such counsel, the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(d) the capital stock of this Agreement has been duly authorized, executed and delivered by the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the Stockholders and constitutes a valid and binding agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Stockholders enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (i) as the same may be subject to the effect of general principles of equity and, with respect and (ii) that no opinion need be expressed as to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.the enforceability of indemnification provisions included herein;
(fe) The Underwriter's Warrants will conform except to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andextent set forth on SCHEDULE 3.16, to the best knowledge of such counsel, there are no such claims, actions, suits or proceedings have been pending, or threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to affecting the Company, would, in any individual case at law or in the aggregateequity, result in or before or by any material adverse change in the businessfederal, prospectsstate, financial condition municipal or results of operations of the Companyother governmental department, commission, board, bureau, agency or instrumentality wherever located;
(hf) no contract notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other document third party is required to be described in connection with the Registration Statement execution, delivery or consummation of this Agreement by any Stockholders or for the Prospectus or to be filed as an exhibit transfer to the Registration Statement that is not described therein or filed as requiredParent of the Company Stock;
(ig) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions execution of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated do obligations hereunder will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions ofof the Company's Certificate of Incorporation or the bylaws of the Company or of any lease, instrument, license, permit or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are Stockholder is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mh) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as other matters incident to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely matters set forth herein as to matters of fact, to reasonably required by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Parent.
Appears in 1 contract
Opinion of Counsel. The Representative PIF on behalf of the Acquiring Fund shall have received an opiniona favorable opinion of Ropes & Xxxx LLP, counsel to the Acquired Fund for the transactions contemplated hereby, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Date and in a form satisfactory to the effect thatAcquiring Fund, to the following effect:
(ai) the Company has been duly WM XXX is a limited liability company organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of California, Massachusetts and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of WM XXX, except where and the failure to be so qualified would not have Acquired Fund is a material adverse effect on separate series of WM XXX constituted in accordance with the Companyapplicable provisions of the 1940 Act and the LLC Agreement and Bylaws of WM XXX;
(bii) This Agreement has been authorized, executed and delivered on behalf of WM XXX and the Company has the corporate power to own or lease its properties; to conduct its business as described in Acquired Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by PIF and the agreement representing Acquiring Fund, is the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of WM XXX and the Company Acquired Fund enforceable against WM XXX and the Acquired Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants will conform Acquired Fund has the power to sell, assign, transfer and deliver the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required Assets to be described in the Registration Statement or the Prospectus and are not described thereintransferred by it hereunder, and, upon consummation of the transactions contemplated hereby, the Acquired Fund will have transferred such Assets to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the CompanyAcquiring Fund;
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement did not, and the agreement representing the Underwriter's Warrants performance by WM XXX and the consummation Acquired Fund of their obligations hereunder will not, violate the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration WM XXX LLC Agreement or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawsBylaws, or conflict with or result in a breach or violation any provision of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, counsel to which WM XXX or the Company Acquired Fund is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement it is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted bound or, to the knowledge of such counsel, are threatened result in the acceleration of any obligation or contemplated the imposition of any penalty under any material agreement or any judgment or decree to which WM XXX or the Acquired Fund is a party or by the Commissionwhich it is bound;
(kv) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by WM XXX and the Acquired Fund of the transactions contemplated by this Agreement, except such as have been obtained;
(vi) Such counsel does not know of any legal or governmental proceedings relating to WM XXX or the Acquired Fund existing on or before the date of mailing of the Prospectus/ Proxy Statement included in the Registration Statement and referred to in Section 5.2(b) or the Prospectus and each amendment or supplement thereto (Closing Date required to be described in each case, other than the financial statements and other financial and statistical information contained therein, Registration Statement which are not described as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulationsrequired;
(lvii) WM XXX is registered with the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered SEC as an investment Company within company under the meaning of the Investment Company Act of 1940, as amended1940 Act; and
(mviii) To the knowledge of such counsel shall also state that they have counsel, except as has been disclosed in writing to PIF, no reason litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date WM XXX or the date Acquired Fund or any of their properties or assets or any person whom WM XXX or the Acquired Fund may be obligated to indemnify in connection with such opinionlitigation, included proceeding or includes any untrue statement investigation, and each of WM XXX and the Acquired Fund is not a material fact party to or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as subject to the financial statements provisions of any order, decree or judgment of any court or governmental body, which materially and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as adversely affects its business or its ability to matters of fact, to consummate the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Wm Strategic Asset Management Portfolios)
Opinion of Counsel. The Representative Placement Agent shall have received an opinionreceive the opinion of Xxxxxx X. Xxxxx, Esq., dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyClosing(s), substantially to the effect that:
(aA) the Company has been duly organized and is validly existing as a corporation and in good standing under the laws of the State of CaliforniaTexas, has all requisite power and authority necessary to own or hold its respective properties and conduct its business and is duly qualified or licensed to transact do business as a foreign corporation and is in good standing under the laws of all in each other jurisdictions where jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify or be so qualified licensed would not have a material adverse effect on the business and condition (financial or otherwise) of the Company;
(bB) each of this Agreement, the Company has Escrow Agreement (as hereinafter defined), the corporate power to own or lease its properties; to conduct its business as described in Warrants, the Registration Statement Subscription Agreements, the M/A Agreement, the Consulting Agreement and the Prospectus; Agents' UPO has been duly and validly authorized, executed and delivered by the Company, and is the valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to enter into this Agreement any applicable bankruptcy, insolvency or other laws affecting the rights of creditors generally and to carry out all of the terms and provisions hereof to be carried out by itgeneral equitable principles;
(cC) the Company has an authorized authorized, issued and outstanding capital stock of the Company as of the date hereof (before giving effect to the transactions contemplated by this Agreement) is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than Offering Documents. Except for the Units and Warrants to be issued as disclosed in the Registration Statement and the Prospectuscontemplated by this Agreement, to such counsel's knowledge, there are no outstanding warrants, options, warrantsagreements, convertible securities, preemptive rights or other commitments pursuant to which the Company is, or other rights calling for the issuance ofmay become, and no commitment, plan or arrangement obligated to issue or register, any share shares of its capital stock or other securities of the Company; all Company other than as set forth in the Term Sheet. All of the issued shares of capital stock of the Company have been duly and validly authorized and validly issued and issued, are fully paid and nonassessable; nonassessable and have not been issued in violation of the preemptive rights of any securityholder of the Company. The offers and sales of such outstanding securities were either registered under the Act and applicable state securities laws or exempt from such registration requirements. The Shares included in the Units have been duly authorized, validly issued, fully paid and nonassessable and no personal liability will attach to the ownership thereof. The Reserved Shares have been duly authorized by all necessary corporate action reserved, and when issued in accordance with the terms of the Company, and, when issued Warrants and delivered to and paid for pursuant to this Agreement, the Agents' UPO will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such nonassessable and not subject to any preemptive or any other similar rights to subscribe for any of the Shares; and no holders of securities of personal liability will attach to the Company are entitled to have such securities registered under the Registration Statementownership thereof;
(dD) assuming (i) the capital stock accuracy of the Company conforms, as to legal matters, to information provided by the statements set forth under the heading "DESCRIPTION OF SECURITIES" Subscribers in the Prospectus Subscription Documents and (ii) that the Placement Agent has complied in all material respectsrespects with the requirements of section 4(2) of the Securities Act (and the provisions of Regulation D promulgated thereunder), the issuance and sale of the Units is exempt from registration under the Securities Act and Regulation D promulgated thereunder;
(eE) neither the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal the Warrants, the Subscription Agreements, the M/A Agreement, the Consulting Agreement, or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance Agents' UPO nor compliance with the terms hereof or thereof, nor the consummation of the agreement representing transactions herein or therein contemplated, has, nor will, conflict with, result in a breach of, or constitute a default under the Underwriter's Warrants, will constitute legal, valid and binding obligations Certificate of Incorporation or By-laws of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein providedCompany, will be duly and validly issuedor any material contract, fully paid and non- assessable and free of preemptive rights.
(g) no legal instrument or governmental proceedings are pending document to which the Company is a party party, or to by which the property of the Company is subject that are required to be described in the Registration Statement it or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected tois bound or violate any applicable law, orrule, if determined adversely to the Companyregulation, wouldjudgment, in any individual case order or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results decree of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities agency or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which court having jurisdiction over the Company or any of its properties or business;
(F) to such counsel's knowledge, there are boundno claims, actions, suits, investigations or the Articles of Incorporation proceedings before or Bylaws of the Companyby any arbitrator, or any statute or any judgmentcourt, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to instrumentality pending or threatened against or affecting the Company;
(j) Company or involving the Registration Statement is effective under the Act, any required filing properties of the Prospectus pursuant to Rule 424(b) has been made in Company which might materially and adversely affect the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness business, properties or financial condition of the Registration Statement Company or any amendment thereto has been issued which might materially adversely affect the transactions or other acts contemplated by this Agreement or the Commissionvalidity or enforceability of this Agreement, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened except as set forth in or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedOffering Documents; and
(mG) such counsel shall also state that they has participated in the preparation of the Offering Documents and nothing has come to the attention of such counsel to cause them to have no reason to believe that the Registration Statement, as of its effective date, Offering Documents contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for the Prospectusfinancial statements, notes thereto and other financial information and statistical data contained therein, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such no 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3).
Appears in 1 contract
Samples: Agency Agreement (Irata Inc)
Opinion of Counsel. The Representative UniCapital shall have received an opinionopinion from Cummxxxx & Xockxxxx, xxunsel to the Stockholders, dated the Firm Closing Date, of Xxxxxin form and substance reasonably satisfactory to UniCapital, X'Xxxxxthat, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for with respect to the Company, substantially to the effect that:
(a) the Company has been duly organized and the Company is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing state of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyincorporation;
(b) based upon a review of the Company's minute books and the Material Contracts, the authorized and outstanding capital stock of the Company has is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of any statutory, or, to carry out all such counsel's knowledge, contractual, preemptive rights of the terms and provisions hereof to be carried out by itany stockholder;
(c) to such counsel's knowledge based upon a review of the Company's minute books and the Material Contracts and except for this Agreement, the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(d) this Agreement has been duly executed and delivered by each Stockholder and constitutes a valid and binding agreement of such Stockholder, enforceable in accordance with its terms, except (i) as such enforceability may be subject to bankruptcy, moratorium, insolvency and other similar laws relating to or affecting the capital stock rights of creditors, (ii) as the Company conforms, same may be subject to the effect of general principles of equity or public policy and (iii) that no opinion need be expressed as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsenforceability of indemnification and non-competition provisions included herein;
(e) each Transaction Document contemplated by this Agreement to be executed by the Company has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except (i) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement and other similar laws relating to or affecting the rights of creditors, (ii) as the same may be subject to the effect of general principles of equity and public policy, and (iii) that no opinion need be expressed as to the enforceability of indemnification and non-competition provisions included therein;
(f) to such counsel's knowledge, no notice to, consent, authorization, approval or order of any court or governmental agency or body is required in connection with the execution, delivery or consummation of this Agreement by any Stockholders or for the transfer to UniCapital of the Company Stock; and
(g) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action performance of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution obligations hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, 's charter documents or the bylaws or any statute Material Contract or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel Lease listed on Schedule 5.16 and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case5.34, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any items listed on Schedule 5.16(a). Such opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Merger Agreement (Unicapital Corp)
Opinion of Counsel. The On the Closing Date, the Representative shall have received an opinionthe favorable opinion of Pxxxxx Bxxxx LLP (“Pxxxxx Bxxxx”), counsel to the Company, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the Company, substantially Representative and in form and substance satisfactory to the Representative to the effect that:
(ai) the The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the its state of incorporation. The Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of its any properties or the conduct character of its business operations requires such qualification, except where the failure to be so qualified qualify would not have a material adverse effect on the Company;.
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement All issued and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock securities of the Company have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable; the Shares holders thereof are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Certificate of Incorporation or Bylaws of the Company. The authorized and outstanding capital stock of the Company is as set forth in the Prospectus.
(iii) The Securities have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreementfor, will be validly issued, fully paid and nonassessablenon-assessable; the shares holders thereof are not and will not be subject to personal liability by reason of capital stock being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company have been duly authorized for quotation on arising by operation of law or under the Nasdaq SmallCap Market; no holders Certificate of outstanding shares Incorporation or Bylaws of capital stock the Company. When issued, the Representative’s Purchase Option, the Representative’s Warrants and the Warrants will constitute valid and binding obligations of the Company are entitled as such to any preemptive or other rights to subscribe for any of issue and sell, upon exercise thereof and payment therefor, the Shares; number and no holders type of securities of the Company called for thereby and such Warrants, the Representative’s Purchase Option, and the Representative’s Warrants, when issued, in each case, are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of enforceable against the Company conformsin accordance with their respective terms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
except: (ea) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting the creditors’ rights generally; (b) as enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and any indemnification or contribution hereunder provision may be limited by applicable under the federal or and state securities laws; and
(c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Common Stock comply in all respects with the requirements of Delaware law.
(fiv) The Underwriter's Warrants will conform to This Agreement, the description thereof in Warrant Agreement, the Registration Statement Services Agreement, the Trust Agreement, the Escrow Agreement and the ProspectusUnit Placement Agreement, have each been duly and validly authorized and, when executed and delivered by the Company, constitute, and the Representative’s Purchase Option has been duly and validly authorized by the Company and, when issued executed and paid for in accordance with the terms of the agreement representing the Underwriter's Warrantsdelivered, will constitute legalconstitute, the valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of Company, enforceable against the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (b) as enforceability of any indemnification or contribution provisions may be limited under the terms federal and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the agreement representing the Underwriter's Warrants at the price therein provided, will court before which any proceeding therefor may be duly and validly issued, fully paid and non- assessable and free of preemptive rightsbrought.
(gv) no legal or governmental proceedings are pending to which The execution, delivery and performance of this Agreement, the Company is a party or to which Warrant Agreement, the property of Representative’s Purchase Option, the Company is subject that are required to be described in Escrow Agreement, the Registration Statement or Trust Agreement, the Prospectus and are not described thereinServices Agreement, andthe Unit Placement Agreement, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering issuance and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this AgreementSecurities, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the other terms and provisions of this Agreement hereof and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated thereof, do not require and will not, with or without the consent, approval, authorization, registration giving of notice or qualification the lapse of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawstime, or both, (a) to such counsel’s knowledge, conflict with with, or result in a breach or violation of of, any of the terms and or provisions of, or constitute a default under, or result in the creation or modification of any indenturelien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any mortgage, deed of trust, lease note, indenture, loan, contract, commitment or other agreement or instrumentinstrument filed as an exhibit to the Registration Statement, known to such counsel, to which (b) result in any violation of the Company is a party or by which provisions of the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws the By-Laws of the Company, or (c) to such counsel’s knowledge, violate any statute or any judgment, order or decree, order, rule or regulation applicable to the Company of any court court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental authority body having jurisdiction over the Company, its properties or assets.
(vi) The Registration Statement and the Prospectus and any arbitrator known post-effective amendments or supplements thereto (other than the financial statements included therein, as to such counsel which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and applicable Regulations. The Securities and each agreement filed as an exhibit to the Registration Statement conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. The statements set forth in the Registration Statement and the Prospectus under the captions “Risk Factors,” “Comparison to offerings of blank check companies,” and “Description of Securities,” insofar as they purport to describe the provisions of laws, are accurate and fairly summarize such provisions. Upon delivery and payment for the Firm Units on the Closing Date, the Company will not be subject to Rule 419 under the Act and none of the Company;’s outstanding securities will be deemed to be a “pxxxx stock” as defined in Rule 3a-51-1 under the Exchange Act.
(jvii) the The Registration Statement is effective under the Act. To such counsel’s knowledge, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to or are pending or threatened under the knowledge of Act or applicable state securities laws.
(viii) To such counsel’s knowledge, are there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened or contemplated by in writing against the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Opinion of Counsel. The Representative PIF on behalf of the Acquiring Fund shall have received an opiniona favorable opinion of Ropes & Xxxx LLP, counsel to the Acquired Fund for the transactions contemplated hereby, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Date and in a form satisfactory to the effect thatAcquiring Fund, to the following effect:
(ai) the Company has been duly WM I is a business trust organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of California, Massachusetts and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of WM I, except where and the failure to be so qualified would not have Acquired Fund is a material adverse effect on separate series of WM I constituted in accordance with the Companyapplicable provisions of the 1940 Act and the Declaration of Trust and Bylaws of WM I;
(bii) This Agreement has been authorized, executed and delivered on behalf of WM I and the Company has the corporate power to own or lease its properties; to conduct its business as described in Acquired Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by PIF and the agreement representing Acquiring Fund, is the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of WM I and the Company Acquired Fund enforceable against WM I and the Acquired Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants will conform Acquired Fund has the power to sell, assign, transfer and deliver the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required Assets to be described in the Registration Statement or the Prospectus and are not described thereintransferred by it hereunder, and, upon consummation of the transactions contemplated hereby, the Acquired Fund will have transferred such Assets to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the CompanyAcquiring Fund;
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement did not, and the agreement representing the Underwriter's Warrants performance by WM I and the consummation Acquired Fund of their obligations hereunder will not, violate the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration WM I Declaration of Trust or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawsBylaws, or conflict with or result in a breach or violation any provision of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, counsel to which WM I or the Company Acquired Fund is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement it is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted bound or, to the knowledge of such counsel, are threatened result in the acceleration of any obligation or contemplated the imposition of any penalty under any material agreement or any judgment or decree to which WM I or the Acquired Fund is a party or by the Commissionwhich it is bound;
(kv) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by WM I and the Acquired Fund of the transactions contemplated by this Agreement, except such as have been obtained;
(vi) Such counsel does not know of any legal or governmental proceedings relating to WM I or the Acquired Fund existing on or before the date of mailing of the Prospectus/ Proxy Statement included in the Registration Statement and referred to in Section 5.2(b) or the Prospectus and each amendment or supplement thereto (Closing Date required to be described in each case, other than the financial statements and other financial and statistical information contained therein, Registration Statement which are not described as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulationsrequired;
(lvii) WM I is registered with the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered SEC as an investment Company within company under the meaning of the Investment Company Act of 1940, as amended1940 Act; and
(mviii) To the knowledge of such counsel shall also state that they have counsel, except as has been disclosed in writing to PIF, no reason litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date WM I or the date Acquired Fund or any of their properties or assets or any person whom WM I or the Acquired Fund may be obligated to indemnify in connection with such opinionlitigation, included proceeding or includes any untrue statement investigation, and each of WM I and the Acquired Fund is not a material fact party to or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as subject to the financial statements provisions of any order, decree or judgment of any court or governmental body, which materially and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as adversely affects its business or its ability to matters of fact, to consummate the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Opinion of Counsel. The Representative Lender shall have received an opinion, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatreceived:
(ai) opinions of counsel in form, scope and substance reasonably satisfactory to Xxxxxx and Xxxxxx's counsel. Said opinions shall include, but not be limited to the Company has been following: that Borrower is a Delaware limited liability company, and each of Borrower, each member of Borrower, the landlord under the Mall Master Lease (if the Subdivision shall not exist as of the Closing) and the Billboard Master Landlord is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, its formation or incorporation and duly qualified to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions State where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its propertiesProperty is located; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) that the execution and delivery of each the documents to be executed and delivered as evidence of, security for or otherwise in connection with the Loan (the "Loan Documents"), the Billboard Master Lease, the OEAs and, if the Subdivision shall not exist as of this Agreement and the agreement representing Closing, the Underwriter's Warrants Mall Master Lease, have been duly authorized authorized; that the Loan Documents are not usurious and that the Loan Documents, the Billboard Master Lease, the OEAs and, if the Subdivision shall not exist as of the Closing, the Mall Master Lease, have been duly executed and delivered by all necessary corporate action of parties thereto (other than the Company HVAC Provider and each of this Agreement Lender) and the agreement representing the Underwriter's Warrants is a valid are valid, binding and binding obligation of the Company except as such enforceability may be limited by enforceable in accordance with their terms (subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of insolvency and other limitations on creditors' rights generally and subject to general principles equitable principles) and do not violate or contravene any statute or, to such counsel's knowledge, contractual restriction binding on Borrower, any member of equity andBorrower, with respect to this Agreementthe Billboard Master Landlord, except the landlord under the Mall Master Lease (if the Subdivision shall not exist as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing Closing), the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal Principal or governmental proceedings are pending to which the Company is a any other party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
OEAs (h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained thereinHVAC provider) (each such party, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended"Related Document Party"); and
(mii) such counsel shall also state that they have no reason to believe that a Substantive Non-Consolidation Opinion, together with a memorandum in the Registration Statement, as form of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as Exhibit D attached to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Tri-Party Agreement.
Appears in 1 contract
Samples: Loan Agreement (Grand Canal Shops Mall Construction LLC)
Opinion of Counsel. The Representative Tracker shall have received an opinionopinion of Stroock & Stroock & Xxxxx, counsel to Mako, in form and substance reasonably satisfactory to Tracker, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Date to the effect that:
(ai) the Company has been Mako is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of CaliforniaFlorida, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate full power to own or lease and operate its properties; business and properties and to conduct carry on its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out presently conducted by it;
(cii) the Company has an authorized capital stock as set forth under of Mako consists solely of 15,000,000 shares of Mako Common Stock and 2,000,000 shares of Mako Preferred Stock;
(iii) Mako has full power and authority to make, execute and deliver the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance ofMako Documents, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company they have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized approved by all necessary corporate action of the Company, and, when issued Mako and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company executed and delivered and are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a its valid and binding obligation of the Company except as such enforceability may be limited by obligations, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or insolvency and similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof availability of equitable remedies in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companygeneral;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(iiv) the issuance, offering and sale of the Shares and the Underwriter's Warrant transactions contemplated by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated Mako Documents do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or violate the Articles of Incorporation or Bylaws of the Company, Mako or any statute material agreement to which Mako is a party or any judgment, decree, order, rule or regulation by which its properties are bound and of any court or other governmental authority or any arbitrator known to which such counsel and applicable to the Companyis aware;
(jv) the Registration Statement is effective under the Act, any required filing meeting of the Prospectus pursuant to Rule 424(bMako Board authorizing the Mako Documents was duly called and validly held, and such authorizing resolutions there adopted are in full force and effect and have not been amended or repealed;
(vi) has been made in no approval of the manner and within the time period shareholders of Mako is required by Rule 424(b); and no stop order suspending law to authorize or approve the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or Transactions contemplated by the CommissionMako Documents except for the Charter Amendment with respect to the Post- Closing Issuance Transactions;
(kvii) to such counsel's knowledge, there is no litigation or proceeding pending or threatened against Mako related to the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements consummation of the Act and Transactions contemplated by the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedMako Documents; and
(mviii) such counsel shall also state all actions have been taken that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or are necessary to exempt or make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light inapplicable Sections 607.0901 and 607.0902 of the circumstances under which they were madeFlorida Corporation Law to Tracker's acquisition of (A) the Shares, not misleading; provided that in each case such counsel need not express any opinion as and (B) the Contingent Stock, and (C) the shares of Mako Common Stock pursuant to the financial statements and other financial and statistical information contained therein. 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 its exercise of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Anti-Dilution Option.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mako Marine International Inc)
Opinion of Counsel. The Representative On the date hereof and promptly five (5) Business Days’ prior written notice in connection with an issuance of Notes registered on Form SF-3, the Asset Representations Reviewer shall have received provide an opinionopinion of counsel, dated which may be an opinion of in-house counsel, addressed to the Firm Closing DateServicer, the Indenture Trustee, the Owner Trustee, the Issuer, each Rating Agency and the underwriters or purchasers of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Notes to the effect that:
(ai) the Company has been duly organized and Asset Representations Reviewer is validly existing and in good standing as a corporation in good standing under the laws of the State of California, Maryland and duly qualified has the power and authority to transact the business as a foreign corporation in which it is now engaged and is in good standing under the laws of to enter into and to perform all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyobligations under this Agreement;
(bii) the Company has execution, delivery and performance by the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into Asset Representations Reviewer of this Agreement and to carry out all the consummation by the Asset Representations Reviewer of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares services contemplated hereby have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementaction;
(diii) this Agreement has been duly and validly executed and delivered by the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectsAsset Representations Reviewer;
(eiv) the execution and delivery of each by the Asset Representations Reviewer of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein services contemplated do hereby will not require the consentconflict with, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default underunder (A) the by-laws of the Asset Representations Reviewer, (B) to the best of such counsel’s knowledge after due inquiry and investigation, any material indenture, contract, lease, mortgage, deed of trust, lease trust or other instrument of agreement or instrument, known to such counsel, to which the Company Asset Representations Reviewer is a party or by which the Company Asset Representations Reviewer is bound or any (C) to the best of its properties are boundsuch counsel’s knowledge after due inquiry and investigation, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, writ, injunction, decree, orderorder or ruling of any court or governmental authority having jurisdiction over the Asset Representations Reviewer; and
(v) the execution and delivery by the Company of this Agreement and the consummation of the services contemplated hereby will not result in a violation of any applicable statute, rule or regulation to which the Company is subject that would have a material adverse effect on (i) the ability of any court the Company to perform its obligations under this Agreement or other governmental authority (ii) the business, operations, assets, liabilities or any arbitrator known to such counsel financial condition of the Company and applicable its subsidiaries as a whole; and
(vi) to the Company;
(j) the Registration Statement is effective under the Actbest of counsel’s knowledge after due inquiry and investigation, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not requireda party to any pending action or proceeding before any court, andgovernmental agency or arbitrator which (i) purports to affect the legality, if validity, binding effect or enforceability of the Agreement, or (ii) could have a material adverse effect on (x) the ability of the Company uses to perform its obligations under the proceeds of Agreement or (y) the sale of the Firm Shares and the Option Shares solely as described in the Prospectusbusiness, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940operations, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statementassets, as of its effective date, contained any untrue statement of a material fact liabilities or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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 condition of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3subsidiaries as a whole.
Appears in 1 contract
Samples: Asset Representations Review Agreement (World Financial Network Credit Card Master Trust)
Opinion of Counsel. The Representative shall have received an opinion, dated At the Firm Closing Effective Date, you shall receive the favorable opinion of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx Reed Smith LLP, Los Angeles, California counsel for the Company, dated the Effective Date, adxxxxxxx xx you substantially to the effect that:
(ai) the Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of California, Maryland and is duly qualified to transact do business as a foreign corporation and is in good standing under the laws in each other jurisdiction in which it owns or leases property of all other jurisdictions where the ownership a nature, or leasing transacts business of its properties or the conduct of its business requires a type, that would make such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyqualification necessary;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when after being duly issued and delivered to and paid for pursuant to this Agreementsold in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the non-assessable Shares; and no holders of securities holder thereof is or will be subject to personal liability for the obligations of the Company solely by reason of being such a holder; such Shares are entitled not subject to have the preemptive rights of any stockholder of the Company, and all corporate action required to be taken for the authorization, issue and sale of such securities registered under the Registration StatementShares has been validly and sufficiently taken;
(diii) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized and validly authorized, executed and delivered by all necessary corporate action or on behalf of the Company and each of this Agreement constitutes the valid, binding and the enforceable agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except except: (A) as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of relating to creditors' rights generally generally; (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity and, with respect to this Agreement, except as the court before which any proceedings may be brought; and (C) that rights to indemnify and contribution hereunder indemnity may be limited by applicable federal or state securities laws or the public policy underlying such laws.;
(fiv) The Underwriter's Warrants will conform the Registration Statement is effective under the Act and, to the description thereof best of such counsel's knowledge, no stop order has been issued nor are proceedings for a stop order pending or threatened under the Act;
(v) the Advisory Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company and the Advisor and constitutes the valid, binding and enforceable agreement of the Company and the Advisor except: (A) as may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally; and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings may be brought;
(vi) to the best of such counsel's knowledge and information, there is no litigation or governmental proceeding pending or threatened against the Company which might materially and adversely affect the business, properties, condition (financial or otherwise) or earnings of the Company, except as referred to in the Prospectus, and no consent, approval, authorization, registration, qualification, license or order of any court, regulatory or other governmental agency or body is required in connection with the consummation of the transactions contemplated by this Agreement or the Registration Statement and the Prospectus, except such as may be necessary under the Act or state "blue sky" or securities laws in connection with the Offering or such as may have been previously obtained;
(vii) neither the execution and when issued and paid for in accordance delivery of this Agreement or the Advisory Agreement nor compliance with the terms and provisions hereof or thereof will, and consummation of the agreement representing the Underwriter's Warrants, will constitute legal, valid transactions contemplated herein and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus do not and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregatewill not, result in any material adverse change in the business, prospects, financial condition or results of operations violation of the Company;
(h) no contract Articles or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuancebylaws, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach of or violation default (or an event which with the giving of notice or lapse of time or both would constitute a default) under, any of the terms and terms, provisions ofor conditions of any statute, order, judgment, writ, injunction, decree, agreement, rule, regulation, instrument or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, organizational document known to such counsel, to which the Company is a party or or, to the best of such counsel's knowledge and information, by which the Company or any of its properties are is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(jviii) the Advisor has been duly formed and is validly existing as a limited partnership in good standing under the laws of the Commonwealth of Pennsylvania as a limited partnership with full power and authority to conduct the business in which it proposes to engage as described in the Prospectus and is duly qualified to do business and is in good standing in each other jurisdiction in which it transacts business of a type that would make such qualification necessary;
(ix) Carey Financial Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania with full power and authority to conduct the business in which it engages as described in the Prospectus. Carey Financial Corporation is duly qualified to do busixxxx as a foreign corporation and is in good standing in each other jurisdiction in which it owns or leases property of the nature or transacts business of a type, that would make such qualification necessary;
(x) the statements in the Prospectus under the captions "Risk Factors -- Failure to qualify as a REIT could adversely affect our operations and ability to make distributions," "Description of Shares" and "United States Federal Income Tax Considerations" insofar as they are, or refer to, statements of law or legal conclusions, are correct and fairly present the information required to be shown therein; and
(xi) at the time the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner was filed and within at the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commissionit initially became effective, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained the prior performance tables included therein, as to which such counsel need express no opinionopinion is rendered) comply complied as to form in all material respects with the applicable requirements of the Act and the Rules Regulations and Regulations;
(l) nothing came to such counsel's attention which would lead such counsel to believe that either the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in Registration Statement or the Prospectus, will not be required as a result of at the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that time they have no reason to believe that the Registration Statement, as of its effective dateinitially became effective, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that . In rendering the opinions set forth above, counsel may rely, as to matters of law of states other than Pennsylvania, upon the opinions of other counsel, in each case satisfactory in form and substance to you, and counsel shall state such counsel need not express any opinion as opinions are satisfactory in form and scope to the financial statements them and other financial and statistical information contained therein. In rendering any such opinion, such counsel that they believe you may rely on them, and as to matters of fact, to the extent such counsel deems properupon communications, on statements and certificates of responsible from public officials, and certifications and statements from officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Corporate Property Associates 15 Inc)
Opinion of Counsel. The Representative Purchaser shall have received an opinionopinion ------------------ from Xxxxxxx Xxxxxxx & Xxxxxx P.L.L., dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially dated such Closing Date, to the effect thatfollowing effect:
(ai) the The Company has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaDelaware and to our knowledge has full corporate power and authority to conduct its business as presently conducted, to enter into and perform each of the Agreements and to carry out the transactions contemplated by each of the Agreements. The Company is duly qualified to transact do business as a foreign corporation in California, Ohio, New Jersey, Massachusetts, and the District of Columbia and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires in such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;state(s).
(bii) Except for changes contemplated by this Agreement, the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company is as described in subsection 3(b) of this Agreement.
(iii) The issuance, sale and delivery of the Shares and the Warrants by the Company, the issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares or the Warrants and the issuance and delivery of the Warrant Shares have been duly authorized and validly issued and are fully paid and nonassessable; reserved for issuance, as the Shares have been duly authorized case may be, by all necessary corporate action on the part of the Company, andand the Shares and the Warrants when so issued, when issued sold and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for against payment therefor in accordance with the terms provisions of this Agreement, the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock issuable upon conversion of the Company issuable Shares or the Warrants, when issued upon such conversion, and the Warrant Shares, when issued upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein providedWarrants, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsnonassessable.
(giv) no legal or governmental proceedings are pending The execution, delivery and performance by the Company of each of the Agreements have been duly authorized by all necessary corporate action, and each of the Agreements has been duly executed and delivered by the Company. Each of the Agreements (other than subsections 8(g) and 8(h) hereof, as to which no opinion need be expressed) constitutes the Company is a party or to which the property valid and binding obligation of the Company is Company, enforceable in accordance with its terms, subject that are required as to be described in enforcement of remedies to applicable bankruptcy, insolvency, reorganization or similar laws affecting generally the Registration Statement or the Prospectus enforcement of creditors' rights and are not described therein, and, subject to the best knowledge of such counsel, no such proceedings have been threatened against the Company or a court's discretionary authority with respect to any the granting of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case a decree ordering specific performance or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results other equitable remedies. The execution and delivery of operations each of the Company;
(h) no contract or other document is required to be described in Agreements and the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuanceoffer, offering issue and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreementhereunder will not conflict with, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a any breach or violation of any of the terms and terms, conditions, or provisions of, or constitute a default under, the Certificate of Incorporation or By-Laws of the Company, each as amended to date and presently in effect, or any indenture, mortgagelease, deed of trustagreement, lease or other agreement or instrument, instrument known to such counsel, counsel to which the Company is a party or by which the Company it or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule judgment or regulation of any court or other governmental authority or any arbitrator order specifically naming the Company and known to such counsel and applicable to the Company;counsel.
(jv) To our knowledge, except as obtained and in effect at the Registration Statement is effective under the ActClosing, no consent, approval, order or authorization of, or registration, qualification, designation, declaration, or filing with, any governmental authority (other than filings required filing to be made after such Closing under applicable federal and state securities laws) is required on the part of the Prospectus Company in connection with the execution and delivery of the Agreements, or the offer, issue, sale and delivery of the Shares or the other transactions to be consummated at such Closing pursuant to Rule 424(bthis Agreement.
(vi) has been made in Based on the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness representations of the Registration Statement or any amendment thereto has been issued by Purchasers in Section 4, the Commissionoffer, issuance and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in Warrants are exempt from registration under the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; andSecurities Act.
(mvii) To such counsel shall also state that they have counsel's actual knowledge, except as set forth in Schedule 3(i) to this Agreement, there is no reason to believe that action, suit or proceeding, or ------------- governmental inquiry or investigation, pending or threatened against the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Opinion of Counsel. The Representative Stockholder shall have received an opinion, delivered to the ------------------ Purchaser a favorable opinion of the Companies' counsel dated the Firm Closing Datedate of Closing, of Xxxxxin form and substance satisfactory to the Purchaser and its counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
: (a) each of the Company has been Companies is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, California and duly qualified has full corporate power to transact carry on its business as a foreign corporation it is now being conducted, to own or hold under lease the properties and is in good standing assets it now owns or holds under the laws of all other jurisdictions where the ownership or leasing of lease and to enter into and perform its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
obligations under this Agreement; (b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement authorized, issued and the Prospectus; to enter into this Agreement and to carry out all outstanding capital stock of each of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock Companies is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance ofSection 2.1 of this Agreement, and no commitment, plan or arrangement to issue or register, any share of capital stock each of the Company; all of the issued and outstanding shares of capital such stock of the Company have has been duly authorized and validly issued and are is fully paid and nonassessable; non-assessable and is reflected on the Shares have been duly authorized by all necessary corporate action stock ledger of each of the Company, and, when Companies as being issued and delivered to and paid for pursuant solely owned by the Stockholder; (c) to this Agreementthe knowledge of such counsel, will be validly issued, fully paid the Stockholder has good and nonassessable; the shares of capital stock of marketable title to the Company have been duly authorized for quotation on the Nasdaq SmallCap MarketCommon Stock, free and clear of any Liens; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock execution, delivery and performance of this Agreement and all other documents to be executed by the Stockholder or Xx. Xxxxxx in connection with this Agreement (collectively, the "Xxxxxx Documents") have been duly executed and delivered by the Stockholder and Xx. Xxxxxx, and constitute valid and legally binding obligations of the Company conformsStockholder and Xx. Xxxxxx, as applicable, subject to legal mattersapplicable bankruptcy, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
insolvency, moratorium and other similar laws of general application and such general principles of equity as a court having jurisdiction may apply; (e) the execution and delivery of each of this Agreement and the agreement representing other Xxxxxx Documents by the Underwriter's Warrants have been duly authorized by all necessary corporate action Stockholder and Xx. Xxxxxx, as applicable, did not, and the consummation of the Company transactions contemplated hereby and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation thereby will not, violate any provision of the Company except as Articles of Incorporation or By-Laws of either of the Companies or any provision of any agreement, instrument, order, judgment or decree, of which such enforceability counsel has knowledge, to which the Stockholder, either of the Companies or Xx. Xxxxxx may be limited a party or by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability which any of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
them is bound; (f) The Underwriter's Warrants will conform to except as may be specified by such counsel, such counsel does not know of any suit or proceeding pending or threatened against or affecting the description thereof in the Registration Statement and the ProspectusStockholder, and when issued and paid for in accordance with the terms either of the agreement representing Companies or Xx. Xxxxxx, their respective businesses or properties or the Underwriter's Warrants, will constitute legal, valid and binding obligations consummation of the Company entitled transactions contemplated hereunder, or which seeks to restrain or prohibit the rights transactions contemplated by this Agreement; and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best actual knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected toall regulatory and governmental approvals, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations consents and filings required of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuanceStockholder, offering and sale either of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and Companies or Xx. Xxxxxx for the consummation of the transactions contemplated by this Agreement or any of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as Xxxxxx Documents have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sylvan Learning Systems Inc)
Opinion of Counsel. The Representative Company shall have received an furnished to the Underwriter the opinion, dated as of the Firm Closing Datecompletion of the offering, of Xxxxxaddressed to the Underwriter, X'Xxxxx, Xxxxxxxx from Xxxxxxxxxxx & Xxxxxxxx LLPL.L.P., Los Angeles, California counsel for to the Company, substantially to the effect thatthat based upon a review by them of the Registration Statement, Prospectus, the Company's articles of incorporation, bylaws, and relevant corporate proceedings, an examination of such statutes as they deem necessary and such other investigation by such counsel as they deem necessary to express such opinion:
(ai) The Company has been duly incorporated and is a validly existing corporation in good standing with the State of Maryland, with full corporate power and authority to own and operate its properties and carry on its business as set forth in the Registration Statement and Prospectus;
(ii) The Company is, to the best of counsel's knowledge, in compliance in all material respects with all laws requiring qualification or registration to do business as a foreign corporation in all jurisdictions in which the Company's ownership of property or its conduct of business requires such qualification or registration, except where the failure so to register or to qualify does not have a material, adverse effect on the condition (financial or otherwise), business, properties, net assets or results of operation of the Company;
(iii) The Company has authorized and outstanding capital stock as set forth in the Registration Statement and Prospectus; the outstanding common stock of the Company and the Shares conform to the statements concerning them in the Registration Statement and Prospectus; the outstanding common stock of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are is fully paid and nonassessablenonassessable and contains no preemptive rights; the Shares have been duly and validly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to upon issuance thereof in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, and will not be subject to the preemptive rights of any shareholder of the Company;
(iv) The Company is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified, management investment company (as such terms are defined in the 0000 Xxx) and, except as to matters relating to financial statements, schedules and other financial and statistical data, as to which such counsel need not express any opinion, to the best of counsel's knowledge, in all respects complies with the terms and provisions of the 1940 Act and the Rules and Regulations thereunder; to the shares best of capital stock such counsel's knowledge, the statements contained in the Form N-8A, filed by the Company with the Commission, as amended to the date hereof, are appropriately responsive in all respects to the requirements of said form and of such Rules and Regulations of the Commission, and the statements contained therein were accurate as of the date made;
(v) This Agreement, the Investment Consulting Agreement, the Custodian Agreement and the Fund Administration and Accounting Services Agreement have each been duly authorized, executed and delivered by the Company and, assuming the due execution and delivery by the other parties thereto, constitute valid and binding agreements of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conformsenforceable in accordance with their terms, as to legal matters, except to the statements set forth under extent (A) that the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of now or hereafter in effect relating to creditors' rights generally generally, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder the court before which any proceeding therefor may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companybrought;
(hvi) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale The performance of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by Investment Consulting Agreement, the Company with the other provisions of this Custodian Agreement and the agreement representing the Underwriter's Warrants Fund Administration and Accounting Services Agreement and the consummation of the other transactions herein and therein contemplated do will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or any violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other agreement or instrument, instrument known to such counsel, counsel to which the Company is a party or by which the Company or any of its properties are is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or law or any judgment, decree, order, rule or regulation known to such counsel of any court or other governmental authority agency or body having jurisdiction over the Company or any arbitrator known to such counsel and applicable to the Companyof its properties;
(jvii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, the Investment Consulting Agreement, the Custodian Agreement or the Fund Administration and Accounting Services Agreement, except (A) such as may be required of the Underwriter; (B) such as have been obtained under the 1933 Act and the 1940 Act; and (C) such consents, approvals, authorizations, orders, regulations or qualifications as may be required under state securities or Blue Sky laws in connection with the offering and distribution of the Shares by the Underwriter;
(viii) The Company is not in violation of its Articles of Incorporation or Bylaws, and to the best knowledge of such counsel, the Company is not presently in violation of any material law, rule or regulation, or in breach of, or in default in the performance of any obligation under, any material indenture, mortgage, deed of trust, loan agreement, bond, debenture, note agreement or other evidence of indebtedness or any other material agreement or instrument to which the Company is a party or any of its properties may be bound or affected;
(ix) The Company has all requisite corporate and authority and, to the best of such counsel's knowledge, are operating in compliance in all material respects with all material authorizations, licenses, permits, consents, certificates and orders of any governmental or self-regulatory body required for the conduct of its business (the "Licenses"); and, to the best of such counsel's knowledge, all such Licenses are valid and in full force and effect, and the Company is in compliance in all material respects with all laws, regulations, orders and decrees applicable to it;
(x) To the best of such counsel's knowledge, the selection of Coopers & Xxxxxxx L.L.P. was, and the terms of their employment are, such as to comply with the provisions of the 1940 Act and the Rules and Regulations of the Commission thereunder; and
(xi) The Registration Statement is has become effective under the Act1933 Act and, any required filing to the best of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been issued and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, or are threatened pending or contemplated by the Commission;
(k) Commission under the Registration Statement 1933 Act; and the Prospectus and each amendment or supplement thereto (in each caseexcept as to matters relating to financial statements, other than the financial statements schedules and other financial and statistical information contained thereindata, as to which such counsel need not express no any opinion) , the Registration Statement and Prospectus, and each amendment and supplement thereto, comply as to form in all material respects with the applicable requirements of the 1933 Act and the Rules and Regulations;
(l) the Company is not requiredRegulations thereunder, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as after a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) reasonable investigation such counsel shall also state that they have has no reason to believe that either the Registration StatementStatement or the prospectus, as of its effective dateor any such amendment or supplement thereto, contained contains any untrue statement of a material fact or omitted omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingmade (except that no opinion need be expressed as to financial statements contained in the Registration Statement or Prospectus); provided that in each case and such counsel need is familiar with all contracts referred to in the Registration Statement or Prospectus and such contracts are accurately summarized or disclosed therein in all material respects or filed as exhibits thereto as required, and such counsel, after a reasonable investigation, does not express know of any opinion as legal or governmental proceedings pending or threatened to which the financial statements Company is the subject of such a character required to be disclosed in the Registration Statement or the Prospectus which are not disclosed and other financial and statistical information contained thereinaccurately described therein in all material respects. In rendering any such opinion, As to routine factual matters such counsel may rely as to matters on the certificate of fact, to the extent such counsel deems proper, on certificates of responsible officers an appropriate officer of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Opinion of Counsel. The Representative Representatives shall have received an opinion, dated the Firm Closing Date, of XxxxxQuarles & Brady, X'XxxxxPhoenix, Xxxxxxxx & Xxxxxxxx LLPArizona, Los Angeles, California counsel for the xxxxxel xxx xhe Company, substantially to the effect that:
(a) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of CaliforniaDelaware, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires 17 such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
; (c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in effective upon the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock Closing all of the Company; all of the 's shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap National Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Underwriting Agreement (Md Labs Inc)
Opinion of Counsel. The Representative PIF on behalf of the Acquiring Fund shall have received an opiniona favorable opinion of Ropes & Gray LLP, cxxxxel to the Acquired Fund for the transactions contemplated hereby, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially Date and in a form satisfactory to the effect thatAcquiring Fund, to the following effect:
(ai) the Company has been duly WM II is a xxxxxess trust organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of California, Massachusetts and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of WM II, except where and xxx Xcquired Fund is a separate series of WM II constxxxxxd in accordance with the failure to be so qualified would not have a material adverse effect on applicable provisions of the Company1940 Act and the Declaration of Trust and Bylaws of WM II;
(bii) the Company Xxxs Agreement has the corporate power to own or lease its properties; to conduct its business as described in been authorized, executed and delivered on behalf of WM II and txx Xxquired Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by PIF and the agreement representing Acquiring Fund, is the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company WM II and txx Xxquired Fund enforceable against WM II and txx Xxquired Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants will conform Acquired Fund has the power to sell, assign, transfer and deliver the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required Assets to be described in the Registration Statement or the Prospectus and are not described thereintransferred by it hereunder, and, upon consummation of the transactions contemplated hereby, the Acquired Fund will have transferred such Assets to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the CompanyAcquiring Fund;
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement did not, and the agreement representing performance by WM II and txx Xxquired Fund of their obligations hereunder will not, violate the Underwriter's Warrants and the consummation WM II Declaxxxxxn of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration Trust or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawsBylaws, or conflict with or result in a breach or violation any provision of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, counsel to which the Company WM II or thx Xxxuired Fund is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement it is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted bound or, to the knowledge of such counsel, are threatened result in the acceleration of any obligation or contemplated the imposition of any penalty under any material agreement or any judgment or decree to which WM II or thx Xxxuired Fund is a party or by the Commissionwhich it is bound;
(kv) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by WM II and txx Xxquired Fund of the transactions contemplated by this Agreement, except such as have been obtained;
(vi) Such counsel does not know of any legal or governmental proceedings relating to WM II or thx Xxxuired Fund existing on or before the date of mailing of the Prospectus/ Proxy Statement included in the Registration Statement and referred to in Section 5.2(b) or the Prospectus and each amendment or supplement thereto (Closing Date required to be described in each case, other than the financial statements and other financial and statistical information contained therein, Registration Statement which are not described as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulationsrequired;
(lvii) WM II is rexxxxxred with the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered SEC as an investment Company within company under the meaning of the Investment Company Act of 1940, as amended1940 Act; and
(mviii) such counsel shall also state that they have no reason to believe that To the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date knowledge of such opinioncounsel, included except as has been disclosed in writing to PIF, no litigation or includes administrative proceeding or investigation of or before any untrue statement of a material fact court or omitted governmental body is presently pending or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion threatened as to the financial statements WM II or thx Xxxuired Fund or any of their properties or assets or any person whom WM II or thx Xxxuired Fund may be obligated to indemnify in connection with such litigation, proceeding or investigation, and other financial each of WM II and statistical information contained therein. In rendering any such opinion, such counsel may rely as txx Xxquired Fund is not a party to matters of fact, or subject to the extent such counsel deems properprovisions of any order, on certificates decree or judgment of responsible officers of any court or governmental body, which materially and adversely affects its business or its ability to consummate the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinionpermitted assignees may provide this opinion (i) to bank examiners and other regulatory authorities should they so request or in connection with their normal examination, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially (ii) to the effect thatindependent auditors and attorneys of such Bank, (iii) pursuant to order or legal process of any court or governmental agency, (iv) in connection with any legal action to which the Bank is a party arising out of the transactions contemplated by the Credit Agreement, or (v) in connection with the assignment of or sale of participations in the Loans. Very truly yours, E-5 OPINION OF COUNSEL SCHEDULE A TO OPINION OF COUNSEL E-6 OPINION OF COUNSEL ATTACHMENT A TO OPINION OF COUNSEL LITIGATION [None.] E-7 OPINION OF COUNSEL EXHIBIT F [FORM OF COMPLIANCE CERTIFICATE] COMPLIANCE CERTIFICATE THE UNDERSIGNED HEREBY CERTIFIES THAT:
(a1) I am the Company has been duly organized and is validly existing as elected [Title] of Xxxxxx Electronics Corporation, a Delaware corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company("Borrower");
(b2) I have reviewed the Company has terms of that certain Revolving Credit Agreement (Bridge Facility) dated as of November 24, 1999, as amended, supplemented or otherwise modified to the corporate power date hereof (said Revolving Credit Agreement, as so amended, supplemented or otherwise modified, being the "Credit Agreement", the terms defined therein and not otherwise defined in this Certificate (including Attachment No. 1 annexed hereto and made a part hereof) being used in this Certificate as therein defined), by and among Borrower, the financial institutions listed therein as Banks, and Bank of America, N.A., as Administrative Agent, and I have made, or have caused to own or lease be made under my supervision, a review in reasonable detail of the transactions and condition of Borrower and its propertiesSubsidiaries during the accounting period covered by the attached financial statements; to conduct its business as and
(3) The examination described in paragraph (2) above did not disclose, and I have no knowledge of, the Registration Statement and existence of any condition or event which constitutes an Event of Default or Unmatured Event of Default during or at the Prospectus; to enter into this Agreement and to carry out all end of the terms and provisions hereof to be carried out accounting period covered by it;
(c) the Company has an authorized capital stock attached financial statements or as of the date of this Certificate[, except as set forth under below]. [Set forth [below] [in a separate attachment to this Certificate] are all exceptions to paragraph (3) above listing, in detail, the heading "CAPITALIZATION" in nature of the Prospectus; other than as disclosed in condition or event, the Registration Statement period during which it has existed and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company Borrower or any of its properties are boundSubsidiaries, as applicable, has taken, is taking, or the Articles of Incorporation proposes to take with respect to each such condition or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.event: _______________________________________________________________________________]
Appears in 1 contract
Samples: Revolving Credit Agreement (Hughes Electronics Corp)
Opinion of Counsel. The Representative Purchaser shall have received an opinionthe opinion of Reboul, MacMurray, Hewitt, Maynard & Kristol, counsel for the Seller, dated the Firm Closing DateXxxx, of Xxxxxxx xxxx xnd substance satisfactory to the Purchaser and its counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(ai) Each of the Company has been and the Seller is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State States of CaliforniaCalifornia and New York, and respectively. The Company is duly licensed or qualified to transact business as a foreign corporation to do business, and is in good standing under standing, in each other jurisdiction in which it owns or leases any real property or in which the laws of all other jurisdictions where the ownership or leasing character and location of its properties and assets owned or leased or the conduct nature of its business requires activities makes such qualificationlicensing or qualification necessary, except such jurisdictions where the failure to be so licensed, qualified or in good standing would not have a material adverse effect Material Adverse Effect. The Company is currently not so licensed, qualified or in good standing in the jurisdictions set forth on the Company;
(b) Schedule 2.01. Each of the Company and the Seller has the all requisite corporate power and authority to own or lease and operate its properties; properties and assets, to conduct carry on its business as described in the Registration Statement currently conducted and the Prospectus; to enter into execute and deliver this Agreement and the Ancillary Agreements to carry out all which it is a party, and to perform its obligations hereunder and thereunder.
(ii) The execution, delivery and performance by the Seller of this Agreement and each of the terms and provisions hereof Ancillary Agreements to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares which it is a party have been duly authorized by all necessary requisite corporate action on the part of the CompanySeller, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and such Ancillary Agreements constitute the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a legal, valid and binding obligation obligations of the Company except as such enforceability may be limited by Seller, enforceable against it in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal (regardless of whether such enforceability is considered in a proceeding at law or state securities lawsin equity).
(fiii) The Underwriter's Warrants will conform to Neither the description thereof in the Registration Statement execution and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant delivery by the Company pursuant to this Agreement, the compliance by the Company with the other provisions Seller of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, Ancillary Agreements to which the Company it is a party or nor the performance by which the Company Seller of its obligations hereunder and thereunder, will (i) violate any provision of law or any governmental regulation or order of its properties are bound, any court or other agency of government that is applicable to the Seller or the Articles Company, (ii) violate the Certificate of Incorporation or Bylaws of the Seller or the Company, or any statute or (iii) violate any judgment, decree, order, rule award or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and applicable to the Company;Seller or the Company or (iv) except as set forth on Schedule 2.02, violate any provision of any note, indenture, agreement, lease or other instrument known to such counsel to which the Seller or the Company is a party, or by which the Seller or the Company or any of their respective properties or assets are bound or affected, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such note, indenture, agreement, lease or other instrument.
(jiv) the Registration Statement is effective under the Act, any required filing The authorized capital stock of the Prospectus pursuant Company consists of 1,000 shares of Company Common Stock, all of which have been duly authorized, are validly issued and outstanding, fully paid and nonassessable and owned of record by the Seller. Upon delivery to Rule 424(b) has been made the Purchaser of certificates evidencing the Shares, duly endorsed for transfer or accompanied by stock transfer powers duly endorsed in blank, against payment of the Purchase Price as provided herein, the Purchaser will acquire valid title to the Shares, free and clear of any Liens, other than any adverse claim (as such term is defined in the manner and within Uniform Commercial Code - Investment Securities as in effect in the time period required by Rule 424(b); and no stop order suspending State of California on the effectiveness Closing Date) of which the Registration Statement or any amendment thereto Purchaser has been issued by notice. During the Commission, and no proceedings for that purpose have been instituted or, to the knowledge course of such counsel's representation of the Seller in connection with this matter, are threatened or nothing has come to its attention that would lead such counsel to conclude that any Liens exist with respect to the Shares immediately prior to the Closing.
(v) Except as expressly contemplated by the Commission;
this Agreement, to such counsel's knowledge, (ki) the Registration Statement and the Prospectus and each amendment no subscription, warrant, option, call, convertible security or supplement thereto other right (in each case, other than the financial statements and other financial and statistical information contained therein, as contingent or other) to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements purchase or acquire any shares of any class of capital stock of the Act and Company is authorized or outstanding, (ii) there is not any commitment of the Rules and Regulations;
Company to issue any shares, warrants, options or other such rights or to distribute to holders of any class of its capital stock any evidences or indebtedness or assets, (liii) the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire, convert or exchange any shares of the capital stock of the Company or any interest therein or to pay any dividend or make any other distribution in respect thereof, (iv) there are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the Company and (v) there is not requiredany agreement relating to the voting, andtransfer or registration under the securities laws of any Company Common Stock nor any outstanding proxies with respect thereto.
(vi) No order, if authorization, approval or consent from, or filing with, any federal or state governmental or public body or other authority having jurisdiction over the Seller or the Company uses is required for the proceeds execution, delivery and performance by the Seller of this Agreement or any of the sale of Ancillary Agreements to which the Firm Shares and the Option Shares solely as described in the ProspectusSeller is a party, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact is necessary in order to make ensure the statements thereinlegality, validity, binding effect or enforceability against the Seller of this Agreement or any such Ancillary Agreement, or is necessary in light order that the business of the circumstances under which they were made, not misleading; provided that Company can be conducted immediately following the Closing Date substantially in each case such counsel need not express any opinion the same manner as to the financial statements and other financial and statistical information contained thereinheretofore conducted. In rendering any such opinionopinions, such counsel may for the Seller shall be entitled to rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible fact by officers of the Company Seller and public its subsidiaries (including the Company), and certificates of government officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Health Management Systems Inc)
Opinion of Counsel. The Representative Acquired Portfolio shall have received an opinionthe opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Acquiring Portfolio, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the Company, Acquired Portfolio substantially in the form and to the effect that:
: (ai) the Company has been Trust is duly organized formed and is validly existing as a corporation in good standing under the laws of the its State of California, and organization; (ii) the Acquiring Portfolio is duly qualified to transact business designated as a foreign corporation and series of the Trust; (iii) the Acquiring Portfolio is in good standing registered as an open-end, management investment company under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
1940 Act; (biv) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement reorganization provided for herein and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share execution of capital stock of the Company; all of the shares of capital stock of the Company this Agreement have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized approved by all necessary corporate requisite action of the Company, and, when issued Trust on behalf of the Acquiring Portfolio and this Agreement has been duly executed and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; by the shares of capital stock Trust on behalf of the Company have been duly authorized for quotation on Acquiring Portfolio and (assuming the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except other parties thereto) is a valid and binding obligation of the Trust on behalf of the Acquiring Portfolio; (v) neither the execution or delivery by the Trust on behalf of the Acquiring Portfolio of this Agreement nor the consummation by the Acquiring Portfolio of the transactions contemplated thereby violate any provision of any statute or any published regulation or any judgment or order disclosed to counsel by the Trust or the Acquiring Portfolio as such enforceability may being applicable to the Trust or the Acquiring Portfolio; (vi) the Acquiring Portfolio's Shares have been duly authorized and upon issuance thereof in accordance with this Agreement will be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally validly issued and fully paid; and (vii) to their knowledge and subject to general principles the qualifications set forth below, the execution and delivery by the Trust on behalf of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms Acquiring Portfolio of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require require, under the laws of the State of organization or any state in which the Acquiring Portfolio is qualified to do business or the federal laws of the United States, the consent, approval, authorization, registration registration, qualification or qualification of order of, or with filing with, any court or governmental authority, agency or body (except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(bobtained); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel . Counsel need express no opinion) comply , however, as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
any such consent, approval, authorization, registration, qualification, order or filing (la) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not which may be required as a result of the sale involvement of such Shares other parties to be registered as an investment Company within the meaning Agreement in the transactions contemplated by the Agreement because of their legal or regulatory status or because of any other facts specifically pertaining to them; (b) the Investment Company Act absence of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that which does not deprive the Registration Statement, as Acquired Portfolio of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to benefit under the Agreement; or (c) which can be stated therein readily obtained without significant delay or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as expense to the financial statements and other financial and statistical information contained therein. In rendering any such opinionAcquired Portfolio, such counsel may rely as to matters of fact, without loss to the extent Acquired Portfolio of any material benefit under the Agreement and without any material adverse effect on the Acquired Portfolio during the period such counsel deems properconsent, on certificates of responsible officers of the Company and public officialsapproval, authorization, registration, qualification or order was obtained. The foregoing opinion may be limited relates only to the consents, approvals, authorizations, registrations, qualifications, orders or filings under (a) laws of the United Stateswhich are specifically referred to in this opinion, the (b) laws of the State of California organization or any state in which the Acquiring Portfolio is qualified to do business and the General Corporation Law federal laws of the State United States which, in counsel's experience, are normally applicable to transactions of Californiathe type provided for in the Agreement and (c) court orders and judgments disclosed to counsel by the Trust or the Acquiring Portfolio in connection with the opinion. References In addition, although counsel need not have specifically considered the possible applicability to the Registration Statement and Acquiring Portfolio of any other laws, orders or judgments, nothing has come to their attention in connection with their representation of the Prospectus Acquiring Portfolio in the Section 7.2 shall include this transaction that has caused them to conclude that any amendment other consent, approval, authorization, registration, qualification, order or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3filing is required.
Appears in 1 contract
Samples: Reorganization Agreement (Van Kampen Life Investment Trust)
Opinion of Counsel. The Representative UniCapital shall have received an opinionopinion from Feltman, Karesh, Major & Farbxxx X.X.P., counsel to the Stockholders, dated the Firm Closing Merger Effective Date, of Xxxxxin form and substance satisfactory to UniCapital, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that the Merger is effective under all applicable state laws and that:, with respect to the Company and the NSJ Companies (including the Resulting Company):
(a) the Company and each NSJ Company has been duly organized incorporated and is validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing state of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyincorporation;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened the Company and each NSJ Company is duly authorized, qualified and licensed under all applicable laws, regulations, ordinances or contemplated by orders of public authorities to carry on its business in the Commissionplaces and in the manner now conducted;
(kc) the Registration Statement authorized and outstanding capital stock of the Prospectus Company and each amendment NSJ Company is as represented by the Stockholders in this Agreement and each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not 50 issued in violation of any statutory, or supplement thereto (in each casesuch counsel's knowledge, other than the financial statements and other financial and statistical information contained thereincontractual, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements preemptive rights of the Act and the Rules and Regulationsany stockholder;
(ld) to the knowledge of such counsel, neither the Company is not requiredor any NSJ Company has any outstanding options, andwarrants, if calls, conversion rights or other commitments of any kind to issue or sell any of its capital stock;
(e) this Agreement has been duly executed and delivered by each Stockholder and constitutes a valid and binding agreement of such Stockholder, enforceable in accordance with its terms, except as such enforceability may be subject to bankruptcy, moratorium, insolvency and other similar laws relating to or affecting the rights of creditors and except (i) as the same may be subject to the effect of general principles of equity and (ii) that no opinion need be expressed as to the enforceability of indemnification provisions included herein;
(f) each other document or agreement contemplated by this Agreement to be executed by the Company uses or any NSJ Company has been duly authorized, executed and delivered by each such entity and constitutes a valid and binding agreement of such entity, enforceable in accordance with its terms, except as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement and other similar laws relating to or affecting the proceeds rights of creditors and except as the same may be subject to the effect of general principles of equity;
(g) upon consummation of the sale Merger contemplated by this Agreement, UniCapital will receive valid title to the Company Stock, free and clear of all "adverse claims" (as defined in the Uniform Commercial Code applicable in the state of New York) known to such counsel;
(h) no notice to, consent, authorization, approval or order of any court or governmental agency or body is required in connection with the execution, delivery or consummation of this Agreement by any Stockholders or for the transfer to UniCapital of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedStock; and
(mi) such counsel shall also state that they have no reason to believe that the Registration Statement, as execution of its effective date, contained this Agreement and the performance of the obligations hereunder will not violate or result in a breach or constitute a default under any untrue statement of a material fact the terms or omitted to state provisions of the Company's or any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date NSJ Company's charter documents or the date of such opinion, included bylaws or includes any untrue statement of a material fact Contract or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any Lease listed on Schedule 6.17 and 6.35. Such opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
Opinion of Counsel. The Representative Buyer shall have received an opiniondelivered to Seller the opinion of Kogan & Associates, dated as of the Firm Closing Date, of Xxxxxin form and substancx xxxisfactory to Seller, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been Buyer is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State state of California, Nevada and Buyer is duly qualified to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions in each jurisdiction where the ownership or leasing of its properties property or the conduct nature of its business requires such qualification, except qualification and where the failure to be so qualified would not have a material adverse effect Material Adverse Effect on the Company;Buyer.
(b) the Company Buyer has the all necessary corporate power and authority to own or own, lease and operate its properties; to conduct its business as described in the Registration Statement properties and the Prospectus; assets, has taken all corporate actions necessary to enter into this Agreement and the Buyer's Ancillary Documents, to carry out consummate the Sale, the Contemplated Transactions and the other transactions contemplated hereby and to perform its obligations hereunder, and has obtained all Permits, consents, approvals and waivers from Governmental Bodies and other Persons necessary to conduct, following the Closing Date, the Business, except for any of the terms and provisions hereof to be carried out foregoing that have not been obtained by it;Seller in accordance with this Agreement.
(c) All corporate actions by Buyer required in order to authorize (i) the Company has an authorized capital stock as set forth under execution, delivery and performance of this Agreement, the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement Buyer's Ancillary Agreements and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance ofagreements and documents contemplated hereby and to which it will be a party, and no commitment, plan or arrangement to issue or register, any share of capital stock (ii) the consummation of the Company; all of Sale constitutes the shares of capital stock of Contemplated Transactions and the Company other transactions contemplated hereby, have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;taken.
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each Each of this Agreement Agreement, the Buyer's Ancillary Agreements and the agreement representing the Underwriter's Warrants have other agreements and documents contemplated hereby has been duly authorized executed and delivered by all necessary corporate action of Buyer and constitutes the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a legal, valid and binding obligation obligations of the Company Buyer, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganizationmoratorium, moratorium or reorganization and other similar laws affecting the enforceability of creditors' rights generally and subject to (ii) the general principles of equity, regardless of whether asserted in a proceeding in equity andor at law.
(e) Neither the execution and delivery of this Agreement nor the Buyer's Ancillary Agreements, nor the consummation of the Sale, the Contemplated Transactions and the other transactions contemplated hereby, will result in (i) a violation of or a conflict with respect any provision of the certificate of incorporation or by-laws of Buyer, (ii) a breach of, or a default under, any term or provision of any material contract or agreement to this Agreementwhich Buyer is a party, except as rights which breach or default would have a Material Adverse Effect on the business or financial condition of Buyer or its ability to indemnify consummate the Sale and contribution hereunder may be limited the other Contemplated Transactions or (iii) a violation by Buyer of any statute or law or any judgment, decree, regulation or rule of any court or Government Body applicable federal to Buyer which violation would have a Material Adverse Effect on the Buyer or state securities lawsits ability to consummate the Sale, the other Contemplated Transactions and the other transactions contemplated hereby.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are No action is pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andor, to the best knowledge of such counsel, no such proceedings have been threatened against the Company Buyer or with respect to any of its properties that can reasonably be expected to, or, if determined adversely businesses or in relation to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares Sale and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Contemplated Transactions.
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinion, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(aA) the Company has been duly organized and is validly existing as a corporation duly organized, validly existing, and in good standing under the laws of the State of California, and has corporate power to carry on its business as it is now being conducted or proposed to be conducted,
(B) Company is duly qualified to transact business as a foreign corporation to do business, and is in good standing under the laws of all other jurisdictions standing, in each jurisdiction where the ownership or leasing character of its properties owned or held under lease or the conduct nature of its business requires activities makes such qualificationqualification necessary, except where the failure to be so qualified would will not have a material adverse effect on the Company;,
(bC) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; authority to enter into this Agreement and the Warrant and to carry out all perform its obligations hereunder and thereunder,
(D) the execution and delivery by Company of this Agreement and the Warrant, and the consummation by Company of the terms transactions contemplated hereby and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusthereby, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action on the part of Company,
(E) the approval of the Companyshareholders of Company is not required to approve the execution, and, when issued delivery and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each performance of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of Warrant,
(F) this Agreement and the agreement representing the Underwriter's Warrants is a Warrant have been duly executed and delivered by Company and constitute valid and binding obligation obligations of Company enforceable against it in accordance with their respective terms, subject to the Company except as such enforceability may be limited by effects of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general the application of equitable principles of equity and, with respect to this Agreement, in any proceeding (legal or equitable),
(G) except as rights to indemnify and contribution hereunder may be limited by applicable for the filings that set forth on Schedule 2.8 that are required under federal or state securities laws, no consent or approval of, or exemption by, or filing with, any party or governmental or public body or authority is required in connection with the execution, delivery and performance of this Agreement or the Warrant or the taking of any action contemplated hereunder or thereunder.
(fH) The Underwriterthe execution, delivery and performance by Company of this Agreement and the Warrant and the consummation of the transactions contemplated hereby and thereby will not: (i) violate any provision of Company's Warrants will conform articles of incorporation or bylaws, each as currently in effect, (ii) violate, conflict with or result in the breach of any of the terms of, result in a material modification of the effect of, otherwise, give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any agreement disclosed in the Reports, or to counsel's knowledge any other material agreement to which Company is a party or by or to which Company or any of Company's assets or properties may be bound or subject, other than the rights of Foothill Capital Corporation under the Loan and Security Agreement, dated as of December 28, 1998, by and between Image and Foothill Capital Corporation, as amended, which has or at the closing shall have consented to the description thereof in the Registration Statement execution, delivery and performance of this Agreement and the ProspectusWarrant, and when issued and paid for in accordance with (iii) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body of which counsel is aware, by which Company or the terms assets or properties of Company are bound, or (iv) to counsel's knowledge violate any applicable statute, law or regulation.
(I) the agreement representing the Underwriter's WarrantsShares are duly authorized, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and non-assessable, free of all preemptive rights.and similar rights and other restrictions on transfer, other than those arising under applicable state and federal securities laws, and
(gJ) no legal or governmental proceedings are pending to which upon issuance, sale and delivery as contemplated under the Warrant, the Warrant Shares will be duly authorized, validly issued, fully paid and non-assessable, free of all preemptive and similar rights and other restrictions on transfer, other than those arising under applicable state and federal securities laws
(K) Company is a party not an "investment company" or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions "affiliated person" of, or constitute a default under"promoter" or "principal underwriter" for, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to an "investment company," as such counsel, to which the Company is a party or by which the Company or any of its properties terms are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made defined in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and.
(mL) such counsel shall also state that they Based on the representations given by Investor in the Agreement and without conducting an independent investigation, the issuance and sale of the Shares, the Warrant and the Warrant Shares have no reason to believe that the Registration Statementnot been, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact and are not required to be stated therein or necessary to make be, qualified with the statements therein not misleading or that the Prospectus, as commissioner of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law corporations of the State of California. References to the Registration Statement , and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date issuance of such opinionsecurities and the payment or receipt of any part of the consideration therefor prior to such qualification is exempt from such qualification by section 25100, 25102 or 25105 of the California Corporations Code. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.QuickLinks
Appears in 1 contract
Samples: Termination and Exchange Agreement (Image Entertainment Inc)
Opinion of Counsel. The Representative WM I on behalf of the Acquired Fund shall have received an opiniona favorable opinion of Xxxxxx Xxxxxxx PLLC, counsel to the Acquiring Fund for the transactions contemplated hereby, dated the Firm Closing DateDate and in a form satisfactory to WM I, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatfollowing effect:
(ai) the Company has been duly PIF is a corporation organized and is validly existing as a corporation in good standing under the laws of the State of California, Maryland and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of PIF, except where and the failure to be so qualified would not have Acquiring Fund is a material adverse effect on separate series of PIF constituted in accordance with the Companyapplicable provisions of the 1940 Act and the Articles of Incorporation and Bylaws of PIF;
(bii) This Agreement has been authorized, executed and delivered by the Company has the corporate power to own or lease its properties; to conduct its business as described in Acquiring Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by WM I and the agreement representing Acquired Fund, is the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of PIF and the Company Acquiring Fund enforceable against PIF and the Acquiring Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants Acquiring Fund has the power to assume the liabilities to be assumed by it hereunder and upon consummation of the transactions contemplated hereby the Acquiring Fund will conform have assumed such liabilities;
(iv) The Acquiring Fund Shares to be issued for transfer to the description thereof in the Registration Statement Acquired Fund Shareholders as provided by this Agreement are authorized and the Prospectus, upon such transfer and when delivery will be validly issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid outstanding and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable Class A, Class B, Class C and free Class I shares of capital stock in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive rights.right of subscription or purchase in respect thereof;
(gv) no legal The execution and delivery of this Agreement did not, and the performance by PIF and the Acquiring Fund of their obligations hereunder will not, violate the PIF Articles of Incorporation or governmental proceedings are pending Bylaws, or any provision of any material agreement known to such counsel to which PIF or the Company Acquiring Fund is a party or to by which the property of the Company it is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andbound or, to the best knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement or any judgment or decree to which PIF or the Acquiring Fund is a party or by which it is bound;
(vi) To the knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration authorization or qualification order of any court or with any governmental authority, authority is required for the consummation by PIF and the Acquiring Fund of the transactions contemplated by this Agreement except such as have been obtained and such as may be required under state securities or blue sky laws, "Blue Sky" laws or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Companyas have been obtained;
(jvii) Such counsel does not know of any legal or governmental proceedings relating to PIF or the Acquiring Fund existing on or before the date of mailing of the Prospectus/Proxy Statement included in the Registration Statement is effective under referred to in Section 5.2(b) or the Act, any Closing Date required filing of the Prospectus pursuant to Rule 424(b) has been made be described in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by which are not described as required;
(viii) PIF is registered with the Commission, and no proceedings for that purpose have been instituted or, to SEC as an investment company under the 1940 Act; and
(ix) To the knowledge of such counsel, are except as has been disclosed in writing to WM I, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to PIF or contemplated by the Commission;
(k) Acquiring Fund or any of their properties or assets or any person whom PIF or the Registration Statement Acquiring Fund may be obligated to indemnify in connection with such litigation, proceeding or investigation, and each of PIF and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Acquiring Fund is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares party to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as subject to the financial statements provisions of any order, decree or judgment of any court or governmental body, which materially and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as adversely affects its business or its ability to matters of fact, to consummate the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Opinion of Counsel. The Representative USFLORAL shall have received an opinionopinion from ------------------ Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, XX, counsel to the STOCKHOLDERS, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to USFLORAL, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thatthat with respect to the COMPANY:
(ai) the Company COMPANY has been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the CompanyFlorida;
(bii) the Company has authorized and outstanding capital stock of the corporate power to own or lease its properties; to conduct its business COMPANY is as described represented by the STOCKHOLDERS in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(ciii) to the Company has an authorized capital stock as set forth under knowledge of such counsel, the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no COMPANY does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(div) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement has been duly authorized, executed and delivered by the COMPANY and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company STOCKHOLDERS and each of this Agreement and the agreement representing the Underwriter's Warrants is constitutes a valid and binding obligation agreement of the Company COMPANY and the STOCKHOLDERS enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (X) as the same may be subject to the effect of general principles of equity and, with respect to this Agreement, except and (Y) that no opinion need be expressed as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms enforceability of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companyindemnification provisions included herein;
(hv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit except to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering extent set forth on Schedules 6.10 and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or6.20, to the knowledge of such counsel, there are no claims, actions, suits or proceedings pending, or threatened against or contemplated affecting the COMPANY, at law or in equity, or before or by the Commissionany federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(kvi) to the Registration Statement and the Prospectus and each amendment knowledge of such counsel, no notice to, consent, authorization, approval or supplement thereto (order of any court or governmental agency or body or of any other third party is required in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects connection with the applicable requirements execution, delivery or consummation of this Agreement by any STOCKHOLDERS or for the transfer to USFLORAL of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedCOMPANY Stock; and
(mvii) such counsel shall also state that they have no reason to believe that the Registration Statement, as execution of its effective date, contained this Agreement and the performance of the obligations hereunder will not violate or result in a breach or constitute a default under any untrue statement of a material fact the terms or omitted to state any material fact required to be stated therein or necessary to make provisions of the statements therein not misleading or that the Prospectus, as COMPANY's Articles of its date Incorporation or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light Bylaws of the circumstances under COMPANY or of any lease, instrument, license, permit or any other agreement to which they were made, not misleading; provided that in each case such counsel need not express the COMPANY is a party or by which the COMPANY or any STOCKHOLDER is bound. Such opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
Opinion of Counsel. The Representative BOL shall have received an opinionopinion from Xxxxxxxxxx & Xxxxxxx, counsel to the Company and the Stockholders, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to BOL, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has each of NECAnet and NECA have been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;Connecticut.
(b) the Company has authorized and outstanding capital stock of NECAnet and NECA is as represented by the corporate power to own or lease its properties; to conduct its business as described Stockholders in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each share of such stock has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any stockholder;
(c) to the Company knowledge of such counsel, neither NECAnet nor NECA has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits capital stock;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement has been duly authorized, executed and delivered by NECA, NECAnet and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company Stockholders and each of this Agreement and the agreement representing the Underwriter's Warrants is constitutes a valid and binding obligation agreement of the Company such parties enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally creditors and except (i) as the same may be subject to the effect of general principles of equity and, with respect to this Agreement, except and (ii) that no opinion need be expressed as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms enforceability of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companyindemnification provisions included herein;
(he) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit except to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted orextent set forth on SCHEDULE 3.16, to the knowledge of such counsel, there are no claims, actions, suits or proceedings pending, or threatened against or contemplated affecting the Company or the Stockholders, at law or in equity, or before or by the Commissionany federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(kf) no notice to, consent, authorization, approval or order of any court or governmental agency or body of the Registration Statement and State of Connecticut or to the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which knowledge of such counsel need express no opinion) comply as to form of any other third party is required in all material respects connection with the applicable requirements execution, delivery or consummation of this Agreement by the Stockholders or for the merger of the Act Company with and the Rules and Regulationsinto BOL;
(lg) the Company is not required, and, if execution of this Agreement and the Company uses the proceeds performance of the sale obligations hereunder will not violate or result in a breach or constitute a default under any of the Firm Shares and the Option Shares solely as described in the Prospectusterms or provisions of NECA or NECAnet's Certificate of Incorporation or bylaws or of any lease, will not be required as instrument, license, permit or any other agreement to which NECA or NECAnet is a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedparty or by which NECA or NECAnet is/are bound; and
(mh) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as other matters incident to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely matters set forth herein as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3reasonably required by BOL.
Appears in 1 contract
Opinion of Counsel. The Representative API shall have received an a favorable opinion, reasonably satisfactory to API, of Xxxxxxxx, Xxxxxxxxxxx & Xxxx, P.A., counsel to the Corporation and Xxxxxxxxx, dated as of the Firm Closing Date, of Xxxxxaddressed to API, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) The Corporation and the Company has been Subsidiary are duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaMinnesota and Wisconsin, respectively, and duly qualified have all requisite power to transact own, lease and operate their respective assets, properties and business as a foreign corporation now conducted.
(b) Xxxxxxxxx and is in good standing under the laws of Corporation have the full right, power and authority required to enter into, execute and deliver this Agreement and all other jurisdictions where the ownership or leasing of its properties agreements and instruments to be executed by Xxxxxxxxx or the conduct Corporation in connection herewith and to perform fully its obligations hereunder and thereunder.
(c) This Agreement and all other agreements and instruments to be executed by Xxxxxxxxx and the Corporation in connection herewith have been duly and validly authorized, executed and delivered by Xxxxxxxxx and the Corporation and constitute the legal, valid and binding obligations of its business requires such qualificationXxxxxxxxx and the Corporation, enforceable in accordance with their respective terms, except where to the failure extent that such enforceability is limited by bankruptcy, insolvency, moratorium or similar laws now or hereafter in effect relating to be so qualified would not or limiting creditors' rights generally.
(d) The authorized, issued and outstanding capital stock of the Corporation and the Subsidiary is as stated in Exhibit 4.5 hereof; all of the shares of issued and outstanding capital stock of the Corporation and the Subsidiary have been duly authorized and are validly issued and outstanding, fully paid and nonassessable.
(e) To the best knowledge of such counsel, neither the Corporation or the Subsidiary is a party to or bound by any outstanding option or agreement to sell, issue, buy or otherwise dispose of or acquire any shares of capital stock or any debt security of the Corporation or the Subsidiary.
(f) To the best knowledge of such counsel, there is no pending claim, action, suit, investigation or proceeding of any kind in which the Corporation or the Subsidiary has been served with process or otherwise received actual notice, which will have a material adverse effect on the Company;
(b) Corporation or the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightsSubsidiary.
(g) no legal or governmental proceedings are pending to which The ESOP has been terminated (but not liquidated) by the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to Corporation.
(h) To the best knowledge of such counsel, no such proceedings Shareholder shall have been threatened against the Company or perfected dissenters' rights with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in Merger under the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;Minnesota Business Corporation Act.
(i) the issuanceAll necessary permits under Minnesota securities, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration tender offer or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and take-over laws applicable to the Company;
(j) issuance of shares of AII Common Stock in connection with the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose Merger have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3obtained.
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinionFOR SELLER [Letterhead of Sullivan, Ward, Bone, Tyler & Xxxxx, P.C.] ______________, 1996 Life Critical Care Corporation 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Xxx X. Xxxxxx, President Ladies and Gentlemen: This opinion is delivered pursuant to Section 4.1.1.6 of the Asset Purchase Agreement, dated January 22, 1996 (the Firm Closing Date"Agreement"), of Xxxxxbetween Blue Water Medical Supply, X'XxxxxInc. ("Medical Supply") and Blue Water Industrial Products, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California Inc. ("Industrial Products") (collectively and individually referred to herein as the "Company") and Life Critical Care Corporation (the "Purchaser"). We have acted as counsel for the Company, substantially to the effect thatCompany in connection with the Agreement and the transactions contemplated thereby. Where a term that is defined in the Agreement is used in this Opinion, the term has the same meaning set forth in the Agreement, unless differently defined herein.
(1) In rendering the opinions set forth below, we have examined:
(aA) The fully executed Agreement; and
(B) The Charter, By-Laws and minutes of the corporate proceedings of each Company.
(2) In rendering the opinions set forth below, we have assumed:
(A) Each of the parties to the Agreement other than our clients have the power and authority to: (i) enter into the Agreement and all other agreements or documents required to be executed by it pursuant to the Agreement; and (ii) perform all of its obligations under the Agreement and all other agreements or documents required to be executed by it pursuant to the Agreement;
(B) All required corporate actions and authorizations other than on behalf of our clients have been completed; and
(C) The authenticity of all documents submitted as originals, the genuineness of all signatures other than signatures on behalf of our clients and the conformity to the originally executed documents of all documents submitted to us as drafts or photocopies. In rendering our opinions, whenever our opinion herein regarding the existence or absence of facts is indicated to be based on our knowledge or awareness, our opinion is intended to signify that during the course of our representation of the Company no information has been come to our attention which would give us actual knowledge of the existence or absence of such facts. We have not undertaken any independent investigation to determine the existence or absence of such facts and no inference of further knowledge should be drawn from our representation of the Company. As to various questions of fact material to this Opinion, we have relied upon the truth and completeness of the representations and warranties made by each Company as the "Seller" in the Agreement and upon certifications executed by the Officers and Directors of each Company. In addition, we have obtained from public officials and from officers of each Company such other certificates and assurances, and we have examined such corporate records, other documents and questions of law, as we have considered necessary or appropriate for purposes of this Opinion. Based upon the foregoing, and subject to the limitations and qualifications set forth herein, it is our opinion that, as of the date of this letter:
(A) Each Company is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State state of CaliforniaMichigan, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease all of its properties; properties and assets and to conduct carry on its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;it is now being conducted.
(cB) the Each Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by taken all necessary corporate action to authorize it to execute and deliver the Agreement and to consummate the transactions contemplated thereby; and the Agreement has been duly executed and delivered by each Company and is a valid and binding agreement of each Company, enforceable in accordance with its terms.
(C) The execution and delivery of the Company, and, when issued Agreement by each Company and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock consummation by each Company of the Company have been duly authorized for quotation transactions contemplated on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock its part thereby do not and will not violate any provision of the Company are entitled as such to Charter or By-Laws of either Company.
(D) To our knowledge, all consents, authorizations, orders or approvals of, and filings and registrations with, any preemptive governmental commission, board or other rights to subscribe regulatory body required for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" or in the Prospectus in all material respects;
(e) connection with the execution and delivery of the Agreement by each of this Agreement Company and the agreement representing consummation by it of the Underwriter's Warrants transactions contemplated on its part thereby have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium obtained or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreementmade.
(E) To our knowledge, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform disclosed on any Schedule to the description thereof in the Registration Statement and the ProspectusAgreement, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrantsthere is no claim, will constitute action, suit or legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal administrative or other proceeding or governmental proceedings are investigation, pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the either Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, which might result in any material adverse change in the business, prospects, business or financial condition or results of operations either Company.
(F) To the best of our knowledge, neither the execution and delivery of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and nor the consummation of the other transactions herein and therein contemplated do not require the consentthereby, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict conflicts with or does or will violate or result (with the giving of notice and/or the passage of time) in a breach or violation of any of the terms and terms, conditions or provisions of, of or constitute a default under, any indenturelease, mortgage, deed of trust, lease contract or other agreement binding on either Company or instrumentaffecting its properties. To the best of our knowledge, known no consent or approval of any public authority is required as a condition to the validity or enforceability of the Agreement or any transaction contemplated thereby. The foregoing Opinion is subject to the following qualifications:
(A) The Opinion is subject to the operation and effect of applicable bankruptcy, insolvency, moratorium, reorganization, receivership or other similar laws, statutes or rules now or hereafter in effect affecting the rights of creditors generally and the rights of taxing authorities.
(B) The enforceability of the Agreement may require enforcement by a court of equity, and such enforcement is subject to such counsel, to which principles of equity as courts having jurisdiction may impose.
(C) In rendering our opinion regarding the Company is a party or by which the Company or any good standing of its properties are bound, or the Articles of Incorporation or Bylaws of the each Company, or any statute or any judgmentwe have relied exclusively upon Certificates of Good Standing, decreedated _______________, order1996, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the CommissionMichigan Department of Commerce, Corporations and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;Securities Bureau.
(kD) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Our Opinion is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares based solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, upon the laws of the State of California Michigan, and we are opining herein as to the subject transaction as though the laws of the United States of America and the General Corporation Law State of Michigan were the only applicable laws. We assume no responsibility as to the applicability thereto or affect thereon of the laws of any other state or jurisdiction. As to matters governed or affected by laws of states other than the State of Michigan we have assumed that insofar as the substantive laws of any other state may be applicable to any opinions herein, such laws are identical to the substance of laws of the State of CaliforniaMichigan applied by us herein. References This opinion is being furnished to the Registration Statement you solely for your benefit and the Prospectus in the Section 7.2 shall include benefit of your counsel and may not be relied upon by, nor copies of it delivered to, any amendment other person or supplement thereto at the date of such opinionparties without our prior written consent. Such counsel shall permit XxxxxxxSULLIVAN, Mesereau WARD, BONE, TYLER & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.XXXXX, P.C. By: ____________________________
Appears in 1 contract
Opinion of Counsel. The Representative WM II on bexxxx of the Acquired Fund shall have received an opiniona favorable opinion of Dykema Gossxxx XXLX, xxxxsel to the Acquiring Fund for the transactions contemplated hereby, dated the Firm Closing DateDate and in a form satisfactory to WM II, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect thattxx xxllowing effect:
(ai) the Company has been duly PIF is a corporation organized and is validly existing as a corporation in good standing under the laws of the State of California, Maryland and duly qualified has power to transact business as a foreign corporation and is in good standing under the laws of own all other jurisdictions where the ownership or leasing of its properties or the conduct of and assets and to carry on its business requires such qualificationas presently conducted and described in the registration statement on Form N-1A of PIF, except where and the failure to be so qualified would not have Acquiring Fund is a material adverse effect on separate series of PIF constituted in accordance with the Companyapplicable provisions of the 1940 Act and the Articles of Incorporation and Bylaws of PIF;
(bii) This Agreement has been authorized, executed and delivered by the Company has the corporate power to own or lease its properties; to conduct its business as described in Acquiring Fund and, assuming the Registration Statement referred to in Section 5.2(b) and the Prospectus; to enter into this Agreement /Proxy Statement included therein comply with applicable federal securities laws and to carry out all of assuming the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorization, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement by WM II and txx Xxquired Fund, is the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of PIF and the Company Acquiring Fund enforceable against PIF and the Acquiring Fund in accordance with its terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws affecting the enforceability enforcement of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.other equitable principles;
(fiii) The Underwriter's Warrants Acquiring Fund has the power to assume the liabilities to be assumed by it hereunder and upon consummation of the transactions contemplated hereby the Acquiring Fund will conform have assumed such liabilities;
(iv) The Acquiring Fund Shares to be issued for transfer to the description thereof in the Registration Statement Acquired Fund Shareholders as provided by this Agreement are authorized and the Prospectus, upon such transfer and when delivery will be validly issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid outstanding and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable Class A, Class B, Class C and free Class I shares of capital stock in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive rights.right of subscription or purchase in respect thereof;
(gv) no legal The execution and delivery of this Agreement did not, and the performance by PIF and the Acquiring Fund of their obligations hereunder will not, violate the PIF Articles of Incorporation or governmental proceedings are pending Bylaws, or any provision of any material agreement known to such counsel to which PIF or the Company Acquiring Fund is a party or to by which the property of the Company it is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, andbound or, to the best knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement or any judgment or decree to which PIF or the Acquiring Fund is a party or by which it is bound;
(vi) To the knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration authorization or qualification order of any court or with any governmental authority, authority is required for the consummation by PIF and the Acquiring Fund of the transactions contemplated by this Agreement except such as have been obtained and such as may be required under state securities or blue sky laws, "Blue Sky" laws or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Companyas have been obtained;
(jvii) Such counsel does not know of any legal or governmental proceedings relating to PIF or the Acquiring Fund existing on or before the date of mailing of the Prospectus/Proxy Statement included in the Registration Statement is effective under referred to in Section 5.2(b) or the Act, any Closing Date required filing of the Prospectus pursuant to Rule 424(b) has been made be described in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by which are not described as required;
(viii) PIF is registered with the Commission, and no proceedings for that purpose have been instituted or, to SEC as an investment company under the 1940 Act; and
(ix) To the knowledge of such counsel, are except as has been disclosed in writing to WM II, no lxxxxxtion or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to PIF or contemplated by the Commission;
(k) Acquiring Fund or any of their properties or assets or any person whom PIF or the Registration Statement Acquiring Fund may be obligated to indemnify in connection with such litigation, proceeding or investigation, and each of PIF and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company Acquiring Fund is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares party to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as subject to the financial statements provisions of any order, decree or judgment of any court or governmental body, which materially and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as adversely affects its business or its ability to matters of fact, to consummate the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3transactions contemplated hereby.
Appears in 1 contract
Opinion of Counsel. The Representative Lilly shall have received from Xxxxx Xxxxxx & Heckscher, counsel for Centocor, an opinion, opinion dated as of the Firm Closing Date, in form and substance reasonably satisfactory to Lilly as described below (an opinion of counsel from CNTO's in-house counsel, Xxxxxx X. Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for with respect to subsections (iii) and (iv) below is satisfactory to Lilly provided the Company, substantially to form and substance of such opinion remains the effect that:same as described below):
(ai) the Company has been CNTO is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State its jurisdiction of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyincorporation;
(bii) the Company CNTO has the requisite power and authority (corporate power and otherwise) to own or lease its properties; execute, deliver and perform this Amendment and to conduct its business as described in consummate the Registration Statement transactions contemplated hereby. The execution, delivery and performance by CNTO of this Amendment and the Prospectus; to enter into this Agreement and to carry out all consummation by CNTO of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectustransactions contemplated hereby, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary action (corporate action of the Companyor otherwise) on its part. This Amendment constitutes a legal, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except CNTO, enforceable in accordance with its terms, subject, as such enforceability may be limited by to enforcement of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors' rights generally and the availability of equitable remedies which are subject to general principles the discretion of equity andthe court before which any proceeding is brought;
(iii) The execution, with respect delivery and performance by CNTO and CBV of this Amendment, and the consummation by them of the transactions contemplated hereby, do not, and will not violate or contravene any provision of CNTO's or CBV's Articles of Incorporation, Charter or bylaws;
(iv) Except as otherwise disclosed herein, in any Schedule or Exhibit hereto, or set forth in Schedule 8.4 hereto, such counsel is not aware of any suit, action, proceeding or investigation pending or threatened against CNTO or CBV or any of its subsidiaries or affiliates, which, if determined adversely to such parties, would (i) prohibit the execution or delivery of this Amendment, (ii) prohibit the issuance and sale of the Shares pursuant to this AgreementAmendment, or (iii) have a Material Adverse Effect. To the best of such counsel's knowledge, except as rights to indemnify and contribution hereunder may be limited set forth in Schedule 8.4 hereto, CNTO or CBV is not the subject of or bound by applicable federal or state securities laws.otherwise affected by any outstanding judgments or decrees of any court or governmental agency that would have a Material Adverse Effect;
(fv) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the ProspectusShares, and when issued and paid for delivered to Lilly pursuant to and in accordance with the terms of the agreement representing the Underwriter's Warrantsthis Amendment, (a) will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly validly issued and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable non-assessable, (b) will be free and free clear of preemptive rights.
any liens, (gc) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel's knowledge, no such proceedings will have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or issued without violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease preemptive or other agreement or instrument, known right to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commissionpurchase Common Stock, and no proceedings for that purpose have been instituted or(d) based in part on representations of Lilly in this Amendment, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement be issued in compliance with all applicable federal and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedstate securities laws; and
(mvi) such counsel shall also state that they have no reason to believe that CNTO currently meets the Registration Statement, as of its effective date, contained any untrue statement conditions necessary for use of a material fact or omitted to state any material fact required to be stated therein or necessary to make registration statement on Form S-3 under the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.31933 Act.
Appears in 1 contract
Opinion of Counsel. The Representative Ameriprise shall have received an opinion, dated receive the Firm Closing Date, favorable opinion of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx Xxxx Xxxxx LLP, Los Angeles, California real estate counsel for the Company, dated as of the date hereof or as of each Documented Closing Date, addressed to Ameriprise substantially to the effect that:
(ai) the Company has been duly organized and is validly existing as a corporation in good standing The statements under the laws headings "Description of the State Properties," "Description of CaliforniaOther Investments" and "Risk Factors - Risks Related to Our Operations - Potential liability for environmental matters could adversely affect our financial condition" in the Registration Statement and Prospectus (collectively, and duly qualified to transact business as a foreign corporation and is in good standing under the laws "Reviewed Portions of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus"), insofar as they purport to describe or summarize contracts, agreements, statutes, regulations or other legal documents, are accurate descriptions or summaries of such contracts, agreements, documents, statutes, rules and regulations; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;and
(cii) Such counsel has reviewed the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share Reviewed Portions of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (participated in each casethe preparation of the Reviewed Portions of the Registration Statement and the Prospectus and in discussions with officers, other than the financial statements directors, employees and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements representatives of the Act Company at which the contents of the Reviewed Portions of the Registration Statement and the Rules Prospectus and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares related matters were discussed and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares no facts have come to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state our attention that they have no reason would cause us to believe that the statements in the Reviewed Portions of the Registration Statement, as of its Statement and the Prospectus at the time the Registration Statement became effective date, contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, or that the Prospectus, statements in the Reviewed Portions of the Prospectus as of its date or the date of such opinion, included or includes any this opinion contained 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 therein, in light of the circumstances under which they were made, not misleading; provided misleading (except that in each case such counsel need not express any opinion expresses no belief as to financial data included in or omitted from the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as to matters Reviewed Portions of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in and such counsel expresses no belief as to any portions of the Section 7.2 shall include any amendment Registration Statement or supplement thereto at Prospectus other than the date Reviewed Portions of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3the Registration Statement and the Prospectus).
Appears in 1 contract
Samples: Selected Dealer Agreement (Corporate Property Associates 16 Global Inc)
Opinion of Counsel. The Representative UniCapital shall have received an opinionopinion from Thacxxx Xxxxxxxx & Xood, counsel to the Stockholders, dated the Firm Closing Merger Effective Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for in form and substance satisfactory to UniCapital stating substantially that with respect to the Company, substantially to the effect that:
(a) the Company has been duly organized and incorporated, is validly existing as a corporation in good standing under the laws of the State jurisdiction of Californiaits incorporation, has the corporate power and authority to own its property and to conduct its business as now conducted and, to the knowledge of such counsel, as proposed to be conducted by the Company, and is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to do so by reason of its ownership or leasing of real property located in such jurisdiction or maintaining an office in such jurisdiction and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or in each jurisdiction in which the conduct of its business or its ownership or leasing of real property requires such qualificationit to be so, except where to the extent that the failure to be so duly qualified or in good standing would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the issued shares of capital stock of the Company have been duly authorized and validly issued and issued, are fully paid and nonassessable; non-assessable, free and clear of all liens, encumbrances, equities or adverse claims;
(c) the Shares have Agreement (including each other agreement contemplated thereby) has been duly authorized authorized, executed and delivered by all necessary corporate action each of the Companyparties thereto other than UniCapital and Newco, andconstitutes a legally valid and binding obligation of each such party other than UniCapital and Newco, when issued and delivered is enforceable against each such party other than UniCapital and Newco in accordance with its terms, subject to (i) the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and paid for pursuant other similar laws affecting the rights and remedies of creditors generally and (ii) the effect of general principles of equity, whether applied by a court of law or equity, and provided that no opinion is expressed herein with respect to this Agreement, will be validly issued, fully paid and nonassessable; the shares enforceability of capital stock Article 14 or Section 13.4 hereof or of Section 7 of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled Employment Agreement attached hereto as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration StatementAnnex IV;
(d) the capital stock execution and delivery by each party other than UniCapital and Newco of, and the performance by each party other than UniCapital and Newco of its obligations under, the Agreement (including each other agreement contemplated hereby) will not contravene any provision of applicable law or the Certificate of Incorporation or Bylaws of the Company conformsCompany, each as to legal mattersamended as of the date of this opinion, or, to the statements set forth best of our knowledge, result in a breach or default under any agreement or other instrument binding upon the Company (which default is material to the Company) or, to the best of our knowledge, violate any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency of the United States of America or any state thereof is required for the performance by each party other than UniCapital and Newco of its obligations under the heading "DESCRIPTION OF SECURITIES" in Agreement or the Prospectus in all material respects;transactions contemplated therein, except for the effectiveness of the Registration Statement and except for such approval as may be required under the HSR Act; and
(e) the execution and delivery after due inquiry, we do not know of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no any legal or governmental proceedings are pending or to our knowledge threatened to which the Company is a party or to which any of the property properties of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any subject. Such opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at other matters incident to the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP matters set forth herein as agreed to rely upon such opinion in rendering its opinion in Section 7.3by the parties and their respective counsel.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
Opinion of Counsel. The On the Closing Date, the Representative shall have received an opinionthe favorable opinion of Luse Gorman Pomerenk & Schick, dated the Firm Closing DateP.C. ("LUSE"), of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for to the Company, substantially xxxxx xx xx xxx Xxxxing Xxxx, addressex xx the Representative and in form and substance satisfactory to the Representative to the effect that:
(ai) the The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the its state of incorporation. The Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of its any properties or the conduct character of its business operations requires such qualification, except where the failure to be so qualified qualify would not have a material adverse effect on the Company;.
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement All issued and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock securities of the Company have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable; the Shares holders thereof are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Certificate of Incorporation or Bylaws of the Company. The authorized and outstanding capital stock of the Company is as set forth in the Prospectus.
(iii) The Securities have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreementfor, will be validly issued, fully paid and nonassessablenon-assessable; the shares holders thereof are not and will not be subject to personal liability by reason of capital stock being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company have been duly authorized for quotation on arising by operation of law or under the Nasdaq SmallCap Market; no holders Certificate of outstanding shares Incorporation or Bylaws of capital stock the Company. When issued, the Representative's Purchase Option, the Representative's Warrants and the Warrants will constitute valid and binding obligations of the Company are entitled as such to any preemptive or other rights to subscribe for any of issue and sell, upon exercise thereof and payment therefor, the Shares; number and no holders type of securities of the Company called for thereby and such Warrants, the Representative's Purchase Option, and the Representative's Warrants, when issued, in each case, are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of enforceable against the Company conformsin accordance with their respective terms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
except: (ea) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting the enforceability of creditors' rights generally and subject to general principles generally; (b) as enforceability of equity and, with respect to this Agreement, except as rights to indemnify and any indemnification or contribution hereunder provision may be limited by applicable under the federal or and state securities laws; and
(c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Common Stock comply in all respects with the requirements of Delaware law.
(fiv) The Underwriter's Warrants will conform to This Agreement, the description thereof in Warrant Agreement, the Registration Statement Services Agreement, the Trust Agreement, the Escrow Agreement and the ProspectusWarrant Placement Agreement, have each been duly and validly authorized and, when executed and delivered by the Company, constitute, and the Representative's Purchase Option has been duly and validly authorized by the Company and, when issued executed and paid for in accordance with the terms of the agreement representing the Underwriter's Warrantsdelivered, will constitute legalconstitute, the valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of Company, enforceable against the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (b) as enforceability of any indemnification or contribution provisions may be limited under the terms federal and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the agreement representing the Underwriter's Warrants at the price therein provided, will court before which any proceeding therefor may be duly and validly issued, fully paid and non- assessable and free of preemptive rightsbrought.
(gv) no legal or governmental proceedings are pending to which The execution, delivery and performance of this Agreement, the Company is a party or to which Warrant Agreement, the property of Representative's Purchase Option, the Company is subject that are required to be described in Escrow Agreement, the Registration Statement or Trust Agreement, the Prospectus and are not described thereinServices Agreement, andthe Warrant Placement Agreement, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering issuance and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this AgreementSecurities, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the other terms and provisions of this Agreement hereof and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated thereof, do not require and will not, with or without the consent, approval, authorization, registration giving of notice or qualification the lapse of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawstime, or both, (a) to such counsel's knowledge, conflict with with, or result in a breach or violation of of, any of the terms and or provisions of, or constitute a default under, or result in the creation or modification of any indenturelien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any mortgage, deed of trust, lease note, indenture, loan, contract, commitment or other agreement or instrumentinstrument filed as an exhibit to the Registration Statement, known to such counsel, to which (b) result in any violation of the Company is a party or by which provisions of the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws the By-Laws of the Company, or (c) to such counsel's knowledge, violate any statute or any judgment, order or decree, order, rule or regulation applicable to the Company of any court court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental authority body having jurisdiction over the Company, its properties or assets.
(vi) The Registration Statement, the Statutory Prospectus and the Prospectus and any arbitrator known post-effective amendments or supplements thereto (other than the financial statements included therein, as to such counsel which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and applicable Regulations. The Securities and each agreement filed as an exhibit to the Registration Statement conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. The statements set forth in the Registration Statement and the Prospectus under the captions "Risk Factors," "Comparison to offerings of blank check companies," and "Description of Securities," insofar as they purport to describe the provisions of laws, are accurate and fairly summarize such provisions. Upon delivery and payment for the Firm Units on the Closing Date, the Company will not be subject to Rule 419 under the Act and none of the Company;'s outstanding securities will be deemed to be a "penny stock" as defined in Rule 3a-51-1 under the Exchange Act.
(jvii) the The Registration Statement is effective under the Act. To such counsel's knowledge, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to or are pending or threatened under the knowledge of Act or applicable state securities laws.
(viii) To such counsel's knowledge, are there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened or contemplated by in writing against the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Samples: Underwriting Agreement (Energy Services Acquisition Corp.)
Opinion of Counsel. The Representative Company shall have received an furnished to the Underwriter the opinion, dated the Firm Closing DateDates, of Xxxxxaddressed to the Underwriter, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California from counsel for to the Company, substantially to the effect thatthat based upon a review by them of the Registration Statement, Effective Prospectus and the Final Prospectus, the Company's certificate of incorporation, by-laws, and relevant corporate proceedings and contracts, and examination of such statutes they deem necessary and such other investigation by such counsel as they deem necessary to express such opinion:
(a) the The Company has been duly organized incorporated and is validly existing exists as a corporation in good standing under the laws of the State of CaliforniaCayman Islands, and has the corporate power and authority to own its properties and to carry on its business as described in the Registration Statement and Effective Prospectus and the Final Prospectus.
(b) The Company is duly qualified to transact business and in good standing as a foreign corporation and is authorized to do business in good standing all jurisdictions in which the character of the properties owned or held under the laws of all other jurisdictions where the ownership or leasing of its properties lease or the conduct nature of its the business conducted requires such qualification, qualification except where the failure to be so qualified qualify would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;Company.
(c) the Company has an The authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company is as set forth in the Effective Prospectus and Final Prospectus; the Units, the Common Stock, the Warrants, and the Underwriter's Warrants conform to the statements concerning them in the Effective Prospectus and Final Prospectus; the outstanding Common Stock of the Company contains no preemptive rights; the Units, the Shares, the Warrants, and the Underwriter's Warrants have been been, and the Common Stock issuable upon exercise of the Warrants and the Underwriter's Warrants will be, duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued upon issuance thereof and delivered to and paid for pursuant to payment therefor in accordance with this Agreement, will be validly issued, fully paid and nonassessable; , and will not be subject to the shares preemptive rights of capital stock any shareholder of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;Company.
(d) A sufficient number of shares of Common Stock have been duly reserved for issuance upon the capital stock exercise of the Company conforms, as to legal matters, to Warrants and the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;Underwriter's Warrants.
(e) To such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are required for the execution valid authorization, issuance or sale of the Units, the Shares, the Warrants, and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized contemplated by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify for those consents, approvals, authorizations, and contribution hereunder may be limited by applicable federal or orders which the Company has obtained and which are in full force and effect under the Securities Act, the Exchange Act, and under ap-plicable state securities lawslaws in connection with the purchase and distribution of such securities by the Underwriters, and the clearance of the underwriting compensation by the NASD.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement issuance and the Prospectus, and when issued and paid for in accordance with the terms sale of the agreement representing Units and the Underwriter's Warrants, will constitute legal, valid and binding obligations the consummation of the Company entitled to transactions herein contemplated, and the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance compliance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and terms, conditions, or provisions of, of or constitute a default underunder the certificate of incorporation or by-laws of the Company; nor, to such counsel's knowledge, will they conflict with or result in a breach of any of the terms, conditions, or provisions of any note, indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, instrument to which the Company is a party or by which the Company or any of its properties are property is bound, other than for which the Company has received a consent or waiver of such conflict, breach or default, or where such conflict or breach would not have a material adverse effect on the Articles of Incorporation or Bylaws business of the Company, ; or any statute existing law (provided this paragraph shall not relate to federal or any judgment, decreestate securities laws), order, rule rule, regulation, writ, injunction, or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and applicable to of any government, governmental in-strumentality, agency, body, arbitration tribunal, or court, domestic or foreign, having jurisdiction over the Company;Company or its property.
(jg) On the Registration Statement is effective under the Act, any required filing basis of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required a reasonable inquiry by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by including participation in conferences with the Commission;
(k) Company's directors, officers, and accountants at which the contents of the Registration Statement and the Effective Prospectus and each amendment or supplement thereto (in each casethe Final Prospectus and related matters were discussed, other than and without expressing any opinion as to the financial statements and or other financial and statistical information data contained therein: (i) nothing has come to such counsel's attention which leads them to believe that the Registration Statement and the Final Prospectus, as amended or supplemented by any amendments or supplements thereto made by the Company prior to which such counsel need express no opinion) the Closing Date, do not comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
Securities Act; (lii) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares nothing has come to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason their attention which leads them to believe that the Registration StatementStatement or the Final Prospectus, as of its effective dateamended or supplemented by any such amendments or supplements thereto, contained contains any untrue statement of a material fact or omitted omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided (iii) they do not know of any contract or other document required to be described in or filed as an exhibit to the Registration Statement which is not so described or filed; and (iv) the Registration Statement has become effective under the Securities Act, and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by the Commission.
(h) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company, except as rights to indemnity hereunder may be limited by federal or state securities laws or public policy and except as enforceability may be limited by federal or state securities laws or public policy and except as enforceability may be bankruptcy, insolvency, or similar laws affecting creditors rights generally and by general equitable principles.
(i) To such counsel's knowledge, the Company is not in each case default of any of the contracts, licenses, leases or agreements to which it is a party, and the offering and sale of the Units and the Underwriter's Warrants will not cause the Company to become in default of any of its contracts, licenses, leases or agreements.
(j) To such counsel's knowledge the Company is not currently offering any securities for sale except as described in the Registration Statement.
(k) Counsel has no knowledge of any promoter, affiliate, parent or subsidiaries of the Company except as are described in the Registration Statement and Final Prospectus.
(l) To the knowledge of counsel, and without making any statement as to title, the Company owns all properties described in the Registration Statement as being owned by it; the properties are free and clear of all liens, charges, encumbrances or restrictions except as described in the Registration Statement; all of the leases, subleases and other agreements under which the Company holds its properties are in full force and effect; the Company is not in default under any of the material terms or provisions of any of the leases, subleases or other agreements; and there are no claims against the Company concerning its rights under the leases, subleases and other agreements and concerning its right to continued possession of its properties.
(m) To the knowledge of counsel, the Company has been issued by the appropriate federal, state and local regulatory authorities the required licenses, certificates, authorizations or permits necessary to conduct its business as described in the Registration Statement and to retain possession of its properties. Counsel is unaware of any notice of any proceeding relating to the revocation or modification of any of these certificates or permits.
(n) To the knowledge of counsel, the Company has paid all taxes which are shown as due and owing on the financial statements included in the Registration Statement and Final Prospectus.
(o) As to all factual matters, including without limitation the issuance of stock certificates and receipt of payment therefor, the states in which the Company transacts business, and the adoption of resolutions reflected by the Company's minute book, such counsel need not express may rely on the certificate of an appropriate officer of the Company. Counsel's opinion as to the validity and enforceability of any and all contracts and agreements referenced herein may exclude any opinion as to the financial statements and other financial and statistical information contained therein. In rendering validity or enforceability of any indemnification or contribution provisions thereof, or as the validity or en-forceability of 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. The foregoing opinion contract or agreement may be limited by bankruptcy or other laws relating to the laws of the United States, the laws of the State of California or affecting creditors' rights generally and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3by equitable principles.
Appears in 1 contract
Opinion of Counsel. The Representative Acquiror shall have received delivered at the Effective Date to the Company an opinionopinion of its counsel dated as of date of the Effective Date in form and substance reasonably satisfactory to the Company and its counsel, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
that (ai) the Company has been Acquiror is a duly and validly organized and is validly existing as a corporation in good standing under the laws of the State of CaliforniaNevada, and duly in each state where Acquiror may be qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualificationcorporation, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the with full corporate power to own or lease its propertiescarry on the business in which it is engaged; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(cii) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each performance of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action consummation of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants transactions contemplated herein will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any terms or provisions of or cause a default under the terms and provisions ofAcquiror Articles or Acquiror Bylaws or, to any order, rule, or constitute a default underregulation of any court, governmental agency or body having jurisdiction over Acquiror, or any of its activities, properties, any statute, indenture, mortgage, deed of trust, lease lease, loan agreement, security agreement, or other agreement or instrument, known to such counsel, instrument to which the Company Acquiror is a party or by which the Company it is bound or to which any of its properties are boundproperty is subject; (iii) no provision of the Acquiror Articles, Acquiror Bylaws, minutes or share certificates of Acquiror or any contract to which Acquiror is a party or otherwise bound or affected, prevents the Acquiror from delivering good, absolute, and marketable title to the Acquiror Common Stock to the Company as contemplated by this Agreement; (iv) Acquiror is authorized by the Acquiror Articles to issue 500,000,000 shares of the Acquiror Common Stock; (v) that as of the date of this Agreement, there were 20,955,199 shares of the Acquiror Common Stock duly and validly issued and outstanding, fully paid, and non-assessable; (vi) to the best knowledge and belief of such counsel the issuance and sale of the Acquiror Common Stock did not violate the Securities Act, or the Articles of Incorporation or Bylaws rules and regulations of the CompanySEC thereunder, or any statute applicable state securities or any judgmentBlue Sky Laws, decree, order, rule and that Acquiror has no other authorized or regulation outstanding series or class of any court capital stock or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
securities; (j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mviii) such counsel shall also state that they have has no reason knowledge of any litigation, proceeding, or governmental investigation or labor dispute pending or threatened against or relating to believe that Acquiror, its properties or businesses, except as set forth herein or in said opinion; and (ix) the Registration Statement, as redomestication of its effective date, contained any untrue statement of a material fact or omitted Acquiror from Idaho to state any material fact Nevada was conducted in accordance with all applicable laws and no Acquiror stockholder approval was required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of for such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3redomestication.
Appears in 1 contract
Opinion of Counsel. The Representative Company (which term shall include any subsidiaries of the Company) shall have received an furnished to the Representative the opinion, dated the Firm Closing Date, of Xxxxxaddressed to the Representative, X'Xxxxxfrom Atlas, Xxxxxxxx Pearlman, Trop & Xxxxxxxx LLPBorkson, Los Angeles, California counsel for the counxxx xx xhe Company, substantially to the effect thatthat based upon a review by them of the Registration Statement, Prospectus, the Company's certificate of incorporation, bylaws, and relevant corporate proceedings, an examination of such statutes they deem necessary and such other investigation by such counsel as they deem necessary to express such opinion:
(ai) the The Company has been duly organized incorporated and is a validly existing as a corporation in good standing under the laws of Florida, with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the State of California, Registration Statement and Prospectus.
(ii) The Company is duly qualified to transact business or registered as a foreign corporation in any applicable state or foreign jurisdiction cognizant that the Company's ownership of property and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where qualification or registration and that the failure to be so qualified qualify would not have a material adverse effect on the Company;its operations.
(biii) the The Company has the corporate power to own or lease its properties; to conduct its business authorized an outstanding capital stock as described set forth in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all the outstanding common stock of the terms Company, the Stock, and provisions hereof the Warrants conform to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed statements concerning them in the Registration Statement and Prospectus; the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital common stock of the Company have has been duly authorized and validly issued and are fully is fully-paid and nonassessablenonassessable and contains no preemptive rights; the Shares have been duly authorized by all necessary corporate action of the CompanyStock has been, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Warrant Stock of the Company issuable upon exercise of the Underwriter's Warrants have been will be, duly and validly authorized and, upon issuance thereof and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise payment therefor in accordance with this Agreement and the terms of the agreement representing the Underwriter's Warrants at the price therein providedWarrants, will be duly and validly issued, fully paid and non- assessable nonassessable, and free will not be subject to the preemptive rights of preemptive rightsany shareholder of the Company.
(giv) no legal or governmental proceedings The Warrants and Representative's Warrants have been duly and validly authorized and issued and are pending to which the Company is a party or to which the property valid and binding instruments enforceable in accordance with their terms.
(v) A sufficient number of shares of Stock and Warrants have been duly reserved for issuance upon exercise of the Company is subject that Warrants and the Representative's Warrants.
(vi) No consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are required known to be described in such counsel which are necessary for the Registration Statement valid authorization, issue or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations sale of the Company;Stock and Warrants hereunder, except as required under the Act or blue sky or state securities laws.
(hvii) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The issuance and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this AgreementStock, the compliance by the Company with the other provisions of this Agreement and the agreement representing the UnderwriterWarrants, Representative's Warrants and the consummation of the other transactions herein contemplated and therein contemplated do compliance with the terms of this Agreement will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and terms, conditions, or provisions of, of or constitute a default underunder the certificate of incorporation, or bylaws of the Company, or any note, indenture, mortgage, deed of trust, lease or other agreement or instrument, instrument known to such counsel, counsel to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, property is bound or any statute existing law (provided this paragraph shall not relate to federal or any judgment, decreestate securities laws), order, rule rule, regulation, writ, injunction, or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and applicable to of any government, governmental instrumentality, agency, body, arbitration tribunal, or court domestic or foreign, having jurisdiction over the Company;Company or its property.
(jviii) the The Registration Statement is has become effective under the ActAct and, any required filing to the best of the Prospectus pursuant to Rule 424(b) knowledge of such counsel after such counsel has been made in the manner and within the time period required by Rule 424(b); and conducted a reasonable investigation, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, or are threatened pending or contemplated by the Commission;
(k) Commission under the Act; and the Registration Statement and the Prospectus Prospectus, and each amendment or and supplement thereto (in each casethereto, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not requiredRegulations thereunder, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as after a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) reasonable investigation such counsel shall also state that they have has no reason to believe that either the Registration Statement, as of its effective date, contained Statement or the Prospectus or any such amendment or supplement contains any untrue statement of a material fact or omitted omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingmade (except that no opinion need be expressed as to financial statements contained in the Registration Statement or Prospectus); provided that in each case and such counsel need is familiar with all contracts referred to in the Registration Statement or Prospectus and such contracts are sufficiently summarized or disclosed therein or filed as exhibits thereto as required, and such counsel, after a reasonable investigation, does not express know of any opinion contracts required to be summarized or disclosed or filed, and such counsel, after a reasonable investigation, does not know of any legal or governmental proceedings pending or threatened to which the Company is the subject of such a character required to be disclosed in the Registration Statement or the Prospectus which are not disclosed and properly described therein.
(ix) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company. As to routine factual matters such as to the financial statements issuance of stock certificates and other financial receipt of payment therefor, the states and statistical information contained therein. In rendering any such opinioncountries in which the Company transacts business, the adoption of resolutions reflected by the Company's minute book and the like, such counsel may rely as to on the certificate of an appropriate officer of the Company. Such opinion shall also cover such other matters of fact, incident to the extent such counsel deems proper, on certificates of responsible officers of transactions contemplated by this Agreement as the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 Underwriter or their Counsel shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3reasonably request.
Appears in 1 contract
Opinion of Counsel. The Representative Acquired Portfolio shall have received an opinionthe opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx (Illinois), counsel for the Acquiring Portfolio, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the Company, Acquired Portfolio substantially in the form and to the effect that:
: (ai) the Company has been Trust is duly organized formed and is validly existing as a corporation in good standing under the laws of the its State of California, and organization; (ii) the Acquiring Portfolio is duly qualified to transact business designated as a foreign corporation and series of the Trust; (iii) the Acquiring Portfolio is in good standing registered as an open-end, management investment company under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
1940 Act; (biv) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement reorganization provided for herein and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share execution of capital stock of the Company; all of the shares of capital stock of the Company this Agreement have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized approved by all necessary corporate requisite action of the Company, and, when issued Trust on behalf of the Acquiring Portfolio and this Agreement has been duly executed and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; by the shares of capital stock Trust on behalf of the Company have been duly authorized for quotation on Acquiring Portfolio and (assuming the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except other parties thereto) is a valid and binding obligation of the Trust on behalf of the Acquiring Portfolio; (v) neither the execution or delivery by the Trust on behalf of the Acquiring Portfolio of this Agreement nor the consummation by the Acquiring Portfolio of the transactions contemplated thereby violate any provision of any statute or any published regulation or any judgment or order disclosed to counsel by the Trust or the Acquiring Portfolio as such enforceability may being applicable to the Trust or the Acquiring Portfolio; (vi) the Acquiring Portfolio's Shares have been duly authorized and upon issuance thereof in accordance with this Agreement will be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally validly issued and fully paid; and (vii) to their knowledge and subject to general principles the qualifications set forth below, the execution and delivery by the Trust on behalf of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms Acquiring Portfolio of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require require, under the laws of the State of organization or any state in which the Acquiring Portfolio is qualified to do business or the federal laws of the United States, the consent, approval, authorization, registration registration, qualification or qualification of order of, or with filing with, any court or governmental authority, agency or body (except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(bobtained); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel . Counsel need express no opinion) comply , however, as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
any such consent, approval, authorization, registration, qualification, order or filing (la) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not which may be required as a result of the sale involvement of such Shares other parties to be registered as an investment Company within the meaning Agreement in the transactions contemplated by the Agreement because of their legal or regulatory status or because of any other facts specifically pertaining to them; (b) the Investment Company Act absence of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that which does not deprive the Registration Statement, as Acquired Portfolio of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to benefit under the Agreement; or (c) which can be stated therein readily obtained without significant delay or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as expense to the financial statements and other financial and statistical information contained therein. In rendering any such opinionAcquired Portfolio, such counsel may rely as to matters of fact, without loss to the extent Acquired Portfolio of any material benefit under the Agreement and without any material adverse effect on the Acquired Portfolio during the period such counsel deems properconsent, on certificates of responsible officers of the Company and public officialsapproval, authorization, registration, qualification or order was obtained. The foregoing opinion may be limited relates only to the consents, approvals, authorizations, registrations, qualifications, orders or filings under (a) laws of the United Stateswhich are specifically referred to in this opinion, the (b) laws of the State of California organization or any state in which the Acquiring Portfolio is qualified to do business and the General Corporation Law federal laws of the State United States which, in counsel's experience, are normally applicable to transactions of Californiathe type provided for in the Agreement and (c) court orders and judgments disclosed to counsel by the Trust or the Acquiring Portfolio in connection with the opinion. References In addition, although counsel need not have specifically considered the possible applicability to the Registration Statement and Acquiring Portfolio of any other laws, orders or judgments, nothing has come to their attention in connection with their representation of the Prospectus Acquiring Portfolio in the Section 7.2 shall include this transaction that has caused them to conclude that any amendment other consent, approval, authorization, registration, qualification, order or supplement thereto at the date of such opinionfiling is required. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.H.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Van Kampen Life Investment Trust)
Opinion of Counsel. The Representative Corporation shall have received furnish the holders of the Shares with an opinionopinion of its counsel, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially subject to ordinary and customary qualifications and (reasonably acceptable to such holders) to the effect that:
that (ai) the Company registration statement has become effective under the Act and no order suspending the effectiveness of the registration statement, preventing or suspending the use of the registration statement, any preliminary prospectus, any final prospectus, or any amendment or supplement thereto has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, nor to the best knowledge of such counsel, no such proceedings have been threatened against counsel has the Company Commission or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation authority of any of the terms and provisions of, jurisdiction instituted or constitute a default under, threatened to institute any indenture, mortgage, deed of trust, lease or other agreement or instrument, known proceedings with respect to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, an order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(jii) the Registration Statement is effective under the Acteach document, any required filing of the Prospectus pursuant to Rule 424(b) has been made if any, incorporated by reference in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement registration statement and the Prospectus and each amendment or supplement thereto prospectus included therein (in each case, other than the except for financial statements and other related schedules, as to which such counsel need express no opinion) complied as to form when filed with the Commission in all material respects with the Exchange Act, and the rules and regulations of the Commission thereunder, and (iii) the registration statement and the prospectus included therein and any supplements or amendments thereto (except for financial statements and statistical information contained thereinrelated schedules, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds regulations of the sale of the Firm Shares and the Option Shares solely as described in the ProspectusCommission thereunder. In addition, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they it has participated in conferences with officers and other representatives of the Corporation, and representatives of independent accountants for the Corporation, at which conferences such counsel made inquiries of such officers, representatives and accountants; discussed the contents of the preliminary prospectus; the registration statement; and the prospectus and related matters were discussed and, although such counsel is not passing and does not assume any responsibility for the accuracy, completeness or fairness, the statements contained in the preliminary prospectus, the registration statement and the prospectus, on the basis of the foregoing, no facts have no reason come to the attention of such counsel which lead it to believe that either the Registration Statementregistration statement or on any amendment thereto, at the time such registration statement or amendment became effective or the preliminary prospectus or prospectus or amendment or any supplement thereto as of its effective date, the date of such opinion contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or (it being understood that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any no opinion as with respect to the financial statements and schedules and other financial and statistical information contained thereindata included in the preliminary prospectus, the registration statement, or prospectus). In rendering any such opinion, such counsel may rely as to matters of fact, The Corporation shall also furnish to the extent such counsel deems proper, on certificates of responsible officers holders of the Company and Shares a cold comfort letter from the independent certified public officials. The foregoing opinion may be limited to the laws accountants of the United States, the laws of the State of California Corporation in customary form and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3substance.
Appears in 1 contract
Opinion of Counsel. The Representative Placement Agent shall have received an opinionreceive the opinion of Snow, Becker, Krauss, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyClosing(s), substantially to the effect that:
(aA) each of the Company has been duly organized and each Subsidiary is validly existing as a corporation and in good standing under the laws of the State state of Californiaits incorporation, has all requisite corporate power and authority necessary to own or hold its respective properties and conduct its business and is duly qualified or licensed to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions where in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify or be so qualified licensed would not have a material adverse effect on the CompanyMaterial Adverse Effect;
(bB) each of this Agreement, the Company has Notes, the corporate power to own or lease its properties; to conduct its business as described in Warrants, the Registration Statement Fund Escrow Agreement, the Subscription Agreement and the Prospectus; Security Agreement has been duly and validly authorized, executed and delivered by the Company, and is the valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to enter into this Agreement any applicable bankruptcy, insolvency or other laws affecting the rights of creditors generally and to carry out all of the terms and provisions hereof to be carried out by itgeneral equitable principles;
(cC) the Company has an authorized authorized, issued and outstanding capital stock of the Company as of the date hereof (before giving effect to the transactions contemplated by this Agreement) is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the ProspectusOffering Documents. To such counsel's knowledge, there are no outstanding warrants, options, warrantsagreements, convertible securities, preemptive rights or other commitments pursuant to which the Company is, or other rights calling for the issuance ofmay become, and no commitment, plan or arrangement obligated to issue or register, any share shares of its capital stock or other securities of the Company; Company other than as set forth in the Term Sheet. Since September 12, 1995, all of the issued shares of capital stock of the Company have been duly and validly authorized and validly issued and issued, are fully paid and nonassessable; nonassessable and to such counsel's knowledge have not been issued in violation of the Shares have been duly authorized by all necessary corporate action preemptive rights of any securityholder of the Company, and, when issued . The offers and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares sales of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of such outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities were either registered under the Registration Statement;
(d) Securities Act and applicable state securities laws or exempt from such registration requirements. The Notes, the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement Warrants and the agreement representing the UnderwriterAgent's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants Equities have been duly and validly authorized and reserved for issuance upon exercise issued, and the Agent's Shares are fully paid and nonassessable;
(D) assuming (i) the accuracy of the Underwriter's Warrants information provided by the Subscribers in the Subscription Documents and when issued upon such exercise in accordance (ii) that the Placement Agent has complied with the requirements of the provisions of Regulation D promulgated under the Securities Act and the issuance and sale of the Units is exempt from registration under the Securities Act and Regulation D promulgated thereunder;
(E) neither the execution and delivery of this Agreement, the Subscription Agreement, the Fund Escrow Agreement or the Security Agreement, nor compliance with the terms hereof or thereof, nor the consummation of the agreement representing transactions herein or therein contemplated, nor the Underwriterissuance of the Notes, the Warrants or the Agent's Warrants at Equities, has, nor will, conflict with, result in a breach of, or constitute a default under the price therein providedArticles of Incorporation or By-laws of the Company, will be duly and validly issuedor any material contract, fully paid and non- assessable and free of preemptive rights.
(g) no legal instrument or governmental proceedings are pending document known to such counsel to which the Company is a party party, or to by which the property of the Company is subject that are required to be described in the Registration Statement it or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected tois bound or violate any applicable law, orrule, if determined adversely regulation, judgment, order or decree known to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results us of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities agency or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which court having jurisdiction over the Company or any of its properties or business;
(F) there are boundno claims, actions, suits, investigations or the Articles of Incorporation proceedings before or Bylaws of the Companyby any arbitrator, or any statute or any judgmentcourt, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted instrumentality pending or, to the knowledge of such counsel's knowledge, are threatened against or affecting the Company or involving the properties of the Company which might materially and adversely affect the business, properties or financial condition of the Company or which might materially adversely affect the transactions or other acts contemplated by this Agreement or the validity or enforceability of this Agreement, except as set forth in or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedOffering Documents; and
(mG) such counsel shall also state that they has participated in the preparation of the Offering Documents and nothing has come to the attention of such counsel to cause them to have no reason to believe that the Registration Statement, as of its effective date, Offering Documents contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for the Prospectusfinancial statements, notes thereto and other financial information and statistical data contained therein, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such no 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3).
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinion, dated the Firm Closing Date, opinion of Xxxxx, X'Xxxxx, Xxxxxxxx Olshan Grundman Frome Rosenzweig & Xxxxxxxx Wolosky LLP, Los Angelescounsel to the Compaxx, California counsel for xaxxx xx xf the Company, substantially dxxx xx xxxh Cxxxxxx to the effect that:
(a1) the The Company has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, Delaware and duly qualified to transact business as a foreign corporation and is in good standing under the laws of has all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the requisite corporate power and authority to own or lease its properties; to property and conduct its business as described and is duly qualified to do business in the Registration Statement New York.
(2) The Company has all requisite right, corporate power and the Prospectus; authority to enter into this Agreement, the Placement Agent's Option, the Subscription Agreements and the Warrant Agreement (as hereinafter defined) and to carry out all of the terms its obligations hereunder and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusthereunder. No consents, there are no outstanding optionsapprovals, warrants, authorizations or other rights calling for the issuance orders of, and no commitment, plan or arrangement to issue or registerfilings with, any share court or governmental agency or body, other than any approval or consent required under any state securities or Blue Sky laws, are required for the Company to execute, deliver and perform its obligations under this Agreement, or to authorize, issue, sell and deliver the Securities, and to consummate the transactions and agreements contemplated by this Agreement, the Placement Agent's Option, the Subscription Agreements and the Warrant Agreement, except for those authorizations, approvals, consents, orders and filings as have been made or obtained and are in full force and effect and except for such authorizations, approvals, consents, orders and filings required under the Act and the applicable Blue Sky laws of capital stock any state or jurisdiction in the United States in which the Securities may be offered (but counsel need not express any opinion as to the applicability of the Company; all of the any state securities or Blue Sky laws).
(3) All issued and outstanding shares of capital stock Common Stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; non-assessable. To such counsel's knowledge, the Shares have been duly authorized by Company has no options, warrants or other convertible securities outstanding other than as set forth on Schedule 2.2 annexed to the Agency Agreement. To such counsel's knowledge, all necessary corporate action of the Company, and, when issued and delivered to outstanding securities were issued in compliance with the registration requirements of the Securities Act and paid for the rules and regulations promulgated thereunder or pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock an exemption from such registration requirements. None of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such Common Stock is subject to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered personal liability under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws of the Company, Company or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of CaliforniaDelaware solely by reason of being such a holder. References to None of the Registration Statement issued and the Prospectus outstanding shares of Common Stock were issued in the Section 7.2 shall include violation of statutory preemptive rights of any amendment or supplement thereto at the date holders of such opinionsecurities of the Company or, to such counsel's knowledge, were issued in violation of similar contractual rights granted by the Company. Such counsel shall permit XxxxxxxAll of the issued and outstanding options and warrants to purchase shares of Common Stock were validly authorized by the Board of Directors and constitute valid and binding obligations of the Company enforceable in accordance with their respective terms, Mesereau & Leids LLP subject to rely upon such opinion in rendering its opinion in Section 7.3bankruptcy, insolvency, reorganization, fraudulent conveyance and other laws of general applicability relating to or affecting creditors' rights and to general principles of equity.
Appears in 1 contract
Opinion of Counsel. The Representative Parent and Buyer shall have received an opinionopinion of Xxxxxx, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx Xxxx & Xxxxxxxx LLP, Los Angeles, California counsel for to the Members and the Company, substantially dated the Closing Date and in form and substance satisfactory to Buyer, to the effect that:
: (a) the Company has been is a limited liability company duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, California and duly is qualified to transact carry on its business and in standing in the State of Texas; (b) to counsel’s knowledge: (i) the equity of the Company consists of the membership interests set forth on Schedule 1.1; (ii) all of such membership interests are validly issued, fully paid and nonassessable and were not issued in violation of any preemptive rights of any Member or former member of the Company; (iii) such membership interests are owned of record as a foreign corporation set forth in Schedules 1.1 and is 2.3; and (iv) no securities are convertible into, exchangeable for or carrying the right to acquire membership interests of the Company, or any subscriptions, warrants, options, rights or other arrangements or commitments obligating the Company to issue or dispose of any membership interests or any ownership therein; (c) upon endorsement by the Members of the Company Interests and delivery of the certificates representing the Company Interests in accordance with the terms of this Agreement, Buyer will be vested with good standing under and marketable title to the laws Company Interests, free and clear of any adverse claim other than caused by Buyer; (d) the execution and delivery of this Agreement and all other jurisdictions where agreements and documents contemplated hereby by the ownership Company and the Members and the performance by the Company and the Members of their respective obligations under this Agreement and such other agreements and documents do not constitute a violation of or leasing a default under its Charter Documents or any agreements, arrangements, commitments, orders, judgments or decrees to which the Company or any Member is a party or by which it or its respective assets are bound of its properties or the conduct of its business requires which such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
counsel has knowledge; (be) the Company has the corporate limited liability company power and authority to own or lease execute, deliver and perform its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into obligations under this Agreement and the other agreements and documents contemplated hereby (to carry out all of the terms and provisions hereof to be carried out by it;
extent a party thereto); (cf) the execution and delivery of this Agreement and the other agreements and documents by the Company has an authorized capital stock as set forth and the Members and the performance by the Company and the Members of its or their respective obligations hereunder and under the heading "CAPITALIZATION" in other agreements and documents contemplated hereby (to the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares extent a party thereto) have been duly authorized by all necessary corporate requisite limited liability company action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action part of the Company and each all necessary actions of the Members; (g) this Agreement and the each other agreement representing the Underwriter's Warrants and document contemplated hereby is a valid and binding obligation of the Company and each Member, respectively, enforceable against the Company and each Member (to the extent a party thereto) in accordance with their respective terms, except as that (i) such enforceability enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, (ii) the enforceability remedy of creditors' rights generally specific performance and injunctive relief are subject to general principles certain equitable defenses and to the discretion of equity andthe court before which any proceedings may be brought, (iii) rights to indemnification hereunder may be limited under applicable securities laws, and (iv) no opinion is to be rendered with respect to the validity or enforceability of Section 5 of the Employment Agreements or Section 2 of the Noncompetition Agreements; (h) to such counsel’s knowledge, there are no actions, suits or proceedings pending or threatened that are required by the terms of Section 2.16 to be described on Schedule 2.16 that are not described therein; and (i) no consent, approval, authorization or other action by, or filing with, any governmental authority, regulatory body or other person is required to be obtained by the Company or the Members in connection with the execution, delivery or performance by them of their respective obligations under this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been duly obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sourcecorp Inc)
Opinion of Counsel. The Representative Purchaser shall have received an opinionopinion of counsel for Seller, dated as of the Firm Closing Date, of Xxxxxin the form and substance reasonably satisfactory to Purchaser and Purchaser's counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
: (a) the Company has been duly Seller is a federally-chartered savings bank in stock form, organized and is validly existing as a corporation in good standing under the laws of the State United States of California, America and duly qualified to transact business as a foreign corporation has all of the necessary power and is in good standing authority under the laws of all other jurisdictions where the ownership or leasing United States of its properties or America to undertake and consummate the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
transfer and transactions with Purchaser contemplated by this Agreement; (b) the Company has the all corporate power proceedings required to own be taken by or lease its properties; on behalf of Seller to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and authorize it to carry out all of this Agreement, to sell, convey, assign, transfer and deliver to Purchaser, the terms Personal Property, the Purchased Loans and provisions hereof to be carried out by it;
the Deposit Liabilities in accordance with this Agreement have been duly and properly taken; (c) the Company this Agreement has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued executed and delivered to by Seller and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the assuming due execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants Purchaser) is a legal, valid and binding obligation of the Company Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar other laws affecting the enforceability of creditors' rights generally and subject to except as may be limited by the exercise of judicial discretion in applying general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal (regardless of whether such agreement or state securities laws.
documents are considered in a proceeding in equity or at law); (fd) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected toexecution, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering delivery and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions performance of this Agreement and compliance with the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do provisions hereof by Seller will not require the consentconflict with, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a any breach or violation of any of the terms and terms, conditions or provisions of, or constitute a default under, or result in the creation of any indenturelien, charge or encumbrance upon the Branch Office pursuant to any corporate charter, bylaw, mortgage, deed of trustlease, lease agreement, order, decree, ruling or other agreement or instrument, known to such counsel, instrument other than this Agreement to which the Company Seller is a party or by which Seller is bound; (e) to the Company knowledge of such counsel there is no litigation, proceeding or any investigation pending or threatened against or relating to the Branch Office, the Personal Property, the Purchased Loans, the Deposit Liabilities or the business of its properties are boundSeller conducted at or from the Branch Office or in connection therewith that would have a materially adverse effect on the business of the Branch Office, or which questions the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation validity of any court action taken or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus be taken by Seller pursuant to Rule 424(bor in connection with the provisions of this Agreement; (f) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, there are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, no other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of agreements outstanding for the sale of the Firm Shares and Personal Property, the Option Shares solely as described in transfer of the Prospectus, will not be required as a result of Deposit Liabilities or the sale of such Shares the Purchased Loans; (g) Seller has the corporate power to sell, convey, transfer and deliver to Purchaser all of the Personal Property, the Purchased Loans and the Deposit Liabilities to be registered as an investment Company within sold or assigned hereunder; and (h) to the meaning knowledge of such counsel, no authorization, approval, consent, certificate or order under any federal law or regulation applicable to federally-chartered savings banks is required in order for Seller to consummate the transactions contemplated by this Agreement, except for the approval and authorization of the Investment Company Act Office of 1940Thrift Supervision, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary which has been obtained and is in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements full force and other financial and statistical information contained thereineffect. In rendering any such giving the foregoing opinion, such counsel may rely (as to matters of fact, to the extent such counsel deems proper, on ) upon certificates of responsible public officials and officers and directors of Seller and shall not be required to make any independent investigation as to matters qualified by the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date knowledge of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3counsel.
Appears in 1 contract
Samples: Purchase Agreement (Republic Security Financial Corp)
Opinion of Counsel. The Representative ERD shall have received delivered to ENSA an opinionopinion of Kramer, Levin, Naftalis, Nessen, Xxxxx & Xxxxxxx, dated the Firm Closing DateDate and addressed to ENSA, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially as to the effect thatfollowing matters:
(ai) the Company has been ERD is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaDelaware.
(ii) EAC is a corporation duly organized, validly existing and duly qualified to transact business as a foreign corporation and is in good standing under the laws of the State of Delaware.
(iii) Each of ERD and EAC has all requisite corporate power and authority to execute, deliver and perform its obligations under the Agreement and Plan of Merger and all other jurisdictions where the ownership agreements, certificates or leasing of its properties or the conduct of its business requires such qualification, except where the failure instruments to be so qualified would not have a material adverse effect on executed by ERD or EAC in connection therewith (the Company;
(b) "Other Agreements"). The execution, delivery and performance of the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement Agreement and Plan of Merger and the Prospectus; to enter into this Agreement Other Agreements and to carry out all the consummation of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares transactions contemplated thereby have been duly authorized by all necessary requisite corporate action by each of ERD and EAC.
(iv) Each of the Company, and, when issued Agreement and Plan of Merger and the Other Agreements has been duly executed and delivered to by ERD and paid for pursuant to this Agreement, will be validly issued, fully paid EAC and nonassessable; the shares of capital stock (assuming each of the Company have Agreement and Plan of Merger and the Other Agreements has been duly authorized for quotation on authorized, executed and delivered by each other party thereto) constitutes the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company each of ERD and EAC enforceable against each of them in accordance with its terms, except as such that (i) enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar other laws affecting the enforceability of creditors' rights generally and subject to or by general principles of equity and(regardless of whether such enforceability is considered in a proceeding in equity or at law), with respect and (ii) the remedy of specific performance and injunctive and other forms of equitable relief are subject to this Agreement, except as rights certain equitable defenses and to indemnify and contribution hereunder the discretion of the court before which any proceeding therefor may be limited by applicable federal or state securities lawsbrought.
(fv) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to To the best of my knowledge of such counselafter due inquiry, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, consent, license, clearance or order of, declaration or notification to, or filing or registration or qualification of or with with, any governmental authorityor regulatory authority is required in order to permit ERD or EAC to perform their respective obligations under the Agreement and Plan of Merger and/or the Other Agreements, except such as those which have previously been obtained obtained.
(vi) Neither the execution, delivery and such as may be required under state securities performance of the Agreement and Plan of Merger or blue sky lawsthe Other Agreements, nor the consummation by ERD or EAC of the transactions contemplated by the Agreement and Plan of Merger and the Other Agreements will conflict with with, or result in a breach or violation of of, any provision of the terms and provisions of, articles of incorporation or constitute a default under, any indenture, mortgage, deed By-Laws of trust, lease ERD or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3EAC.
Appears in 1 contract
Samples: Merger Agreement (Erd Waste Corp)
Opinion of Counsel. The Representative TBI and TBI ACQUISITION shall have received an opiniondelivered to KNE a favorable opinion of their counsel, dated Lyncx, Xxapxxxx & Xlsux, xxted the Firm Closing Date, of Xxxxxin form and substance satisfactory to KNE and its counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
: (a) the Company has been each of TBI and TBI ACQUISITION is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaDelaware, and has full corporate power to carry on its business as it is now being conducted and to own or hold under lease the properties and assets it now owns or holds under lease; (b) TBI is duly qualified to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing character of its properties or the conduct nature of its business requires activities makes such qualification, except qualification necessary and where the failure to qualify would be so qualified would not have materially adverse to TBI and its subsidiaries, taken as a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its propertieswhole; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized authorized, issued and outstanding capital stock of TBI is as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance ofSection 2.7 of this Agreement , and no commitment, plan or arrangement to issue or register, any share each of capital the issued and outstanding shares of common stock of TBI has been duly authorized and issued and is fully paid and nonassessable; (d) The execution, delivery and performance of this Agreement and all other documents to be executed by TBI and TBI ACQUISITION in connection with this Agreement (the Company; all of the shares of capital stock of the Company "TBI Documents") have been duly authorized and validly issued approved by all requisite action of the Boards of Directors of TBI and are fully paid TBI ACQUISITION and nonassessablethis Agreement and all other TBI Documents have been duly executed and delivered by TBI and TBI ACQUISITION and constitute valid and legally binding obligations of TBI and TBI ACQUISITION; (e) the Shares shares of TBI Preferred Stock and the shares of TBI Common Stock referred to in Section 1.6 of this Agreement have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to in accordance with and paid for pursuant to this Agreementthe Merger, will have been legally and validly issued and will be validly issued, fully paid and nonassessablenonassessable and no stockholder of TBI will have any preemptive right of subscription or purchase in respect thereof; (f) the shares of capital stock TBI Common Stock issuable upon conversion of the Company have been TBI Preferred Stock are duly authorized and reserved for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity issuance and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.TBI Preferred
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Brown Tom Inc /De)
Opinion of Counsel. The Representative CSI shall have received an opinionopinions of counsel ------------------ from Xxxxxxx, Xxxxxxx and Xxxxxxx (as to regulatory and Blue Stone International Ltd. matters), Early, Lennon, Xxxxxx & Xxxxxxx (as to foreign corporation qualifications) and Xxxxxx Xxxxxx White & XxXxxxxxx (as to other matters) addressed to CSI and dated as of the Firm Closing Date. The opinions, each of Xxxxxwhich shall be subject to the limitations, X'Xxxxxqualifications and assumptions mutually agreed upon by the parties and customary for opinions delivered on such subjects, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for shall in the Company, aggregate be substantially to the effect that:
(a1) the Company GlobalTel has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of California, and Washington. GlobalTel is duly qualified to transact do business as a foreign corporation and is in good standing under in each other jurisdiction in the laws of all other jurisdictions United States where the ownership character of the property owned, leased or leasing operated by it or the nature of its properties or the conduct of its business requires activities make such qualification, qualification necessary except where the failure to be so qualified lack of such qualification would not have a material adverse effect on the Company;Material Adverse Effect.
(b2) the Company has the corporate power to own or lease its properties; to conduct its business The authorized capital of GlobalTel is as described stated in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all Agreement.
(3) All of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company GlobalTel Shares have been duly authorized and validly issued and are fully paid paid, non-assessable, and nonassessableare free and clear of any preemptive rights arising pursuant to GlobalTel's articles of incorporation, bylaws and the laws of the State of Washington. To the actual knowledge of attorneys who are currently involved in legal representation of GlobalTel in connection with this Agreement (the "attorneys' knowledge"), except as set forth in the GlobalTel Disclosure Schedule: (A) GlobalTel has not granted or issued any options, warrants, convertible or exchangeable securities or other rights to any person for the purchase or acquisition from GlobalTel of any shares of capital stock of GlobalTel; (B) there are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to GlobalTel; and (C) GlobalTel is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any convertible securities, rights or options of the Shares have type described in subpart (A).
(4) GlobalTel has all requisite corporate power and corporate authority to enter into and perform the Agreement, to own its properties and to carry on its business as, to the attorneys' knowledge, it is now conducted. The Agreement has been duly authorized by all necessary corporate action on the part of the Company, and, when issued GlobalTel and has been duly executed and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares on behalf of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this GlobalTel. The Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except GlobalTel, enforceable against GlobalTel in accordance with its terms, subject, as such enforceability may be limited by to enforcement, (i) to bankruptcy, insolvency, reorganization, arrangement, moratorium or similar and other laws of general applicability affecting the enforceability of creditors' rights generally and subject remedies and (ii) to general principles of equity, whether such enforcement is considered in a proceeding in equity andor at law.
(5) Neither the execution and delivery of the Agreement on behalf of GlobalTel nor the consummation by GlobalTel of the Merger as provided in the Agreement (i) conflicts with any provision of the articles of incorporation or bylaws of GlobalTel or any of its Subsidiaries, (ii) violates any law applicable to GlobalTel or any of its Subsidiaries, or (iii) results in a breach or violation of , or constitutes a default under, any judgment of which the attorneys have knowledge and to which GlobalTel or any of its Subsidiaries is a party or by which any of them or any of their respective properties is bound.
(6) Each Subsidiary (other than with respect to this AgreementRatsten International Telecommunications, except as rights Inc.) has been duly incorporated and is validly existing under the laws of the respective jurisdiction of its incorporation set forth in the GlobalTel Disclosure Schedule. Each Subsidiary (other than with respect to indemnify Ratsten International Telecommunications, Inc.) is duly qualified to do business and contribution hereunder may be limited by applicable federal or state securities lawsis in good standing in the jurisdictions listed in Section 3.1 of the GlobalTel Disclosure Schedule. Ratsten International Telecommunications, Inc. has been duly incorporated and is validly existing under the laws of the State of California, but is no longer in good standing in that state.
(f7) The Underwriter's Warrants will conform to the description thereof authorized capital of each Subsidiary is as stated in the Registration Statement and GlobalTel Disclosure Schedule. The stock register of each Subsidiary indicates that all of the Prospectus, and when issued and paid for outstanding shares of capital stock of that Subsidiary are registered in accordance with the terms name identified and set forth in Section 3.4(b) of the agreement representing GlobalTel Disclosure Schedule as the Underwriter's Warrants, will constitute legal, valid and binding obligations owner of the Company entitled to the rights and benefits of such agreement. The those shares.
(8) All outstanding shares of Common Stock capital stock of the Company issuable upon exercise of the Underwriter's Warrants have been each Subsidiary are duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- non-assessable and are free and clear of any preemptive rights.
(g) no legal or governmental proceedings are pending rights arising pursuant to which the Company is a party or to which Subsidiary's articles of incorporation, bylaws and the property laws of the Company is subject state of organization. To the attorneys' knowledge: (A) there are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights or other contracts or commitments that are required could require any Subsidiary to be described in the Registration Statement issue, sell or the Prospectus and otherwise cause to become outstanding any of its capital stock; (B) there are not described thereinoutstanding or authorized stock appreciation, andphantom stock, to the best knowledge of such counsel, no such proceedings have been threatened against the Company profit participation or similar rights with respect to any Subsidiary; and (C) there are no outstanding obligations of any Subsidiary to repurchase, redeem or otherwise acquire any of its properties securities.
(9) To the attorneys' knowledge, there is no action, suit or proceeding against GlobalTel or any Subsidiary by any Governmental Authority which seeks to restrain, prohibit or invalidate the transactions contemplated by this Agreement that can reasonably be expected tois either pending or has been threatened in writing.
(10) No governmental consents, orapprovals, if determined adversely to authorizations, registrations, declarations or filings are required for the Company, would, in execution and delivery of the Agreement on behalf of GlobalTel or any individual case of its Subsidiaries and consummation by GlobalTel or any of its Subsidiaries of the Merger as provided in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Merger Agreement (Communications Systems International Inc)
Opinion of Counsel. The Representative Placement Agent shall have received an opinionreceive the opinion of Joycx Xxxxxxx, dated xxted the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyExpiration Date(s), substantially to the effect that:
(aA) the Company has been duly organized and is validly existing as a corporation and in good standing under the laws of the State of Californiaits incorporation, has all requisite power and authority necessary to own or hold its properties and conduct its business and is duly qualified or licensed to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions where in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify or be so qualified licensed would not have a material adverse effect on the business and condition (financial or otherwise) of the Company; AccuMed International and Oncometrics are entities duly organized and validly existing under the laws of the United Kingdom and the Yukon Territory, respectively;
(bB) each of this Agreement, the Warrant Agreement, the Subscription Agreement and Registration Rights Agreement, the Agent's Warrants and the Share Certificates has been duly authorized, executed and delivered by the Company, and the Certificate of Designation has been duly executed by the Company has and filed with the corporate power Secretary of State of Delaware, and each of them constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with their respective terms, subject to own any applicable bankruptcy, insolvency or lease its properties; to conduct its business as described in other laws affecting the Registration Statement and the Prospectus; to enter into this Agreement rights of creditors generally and to carry out all of the terms and provisions hereof to be carried out by itgeneral equitable principles;
(cC) the Company has an authorized authorized, issued and outstanding capital stock of the Company (before giving effect to the transactions contemplated by this Agreement) is as set forth under in Exhibit C. Except for the heading "CAPITALIZATION" in the Prospectus; other than Shares, Warrants and Agent's Warrants to be issued as disclosed in the Registration Statement and the Prospectuscontemplated by this Agreement, to such counsel's knowledge, there are no outstanding warrants, options, warrantsagreements, convertible securities, preemptive rights or other commitments pursuant to which the Company is, or other rights calling for the issuance ofmay become, and no commitment, plan or arrangement obligated to issue or register, any share shares of its capital stock or other securities of the Company; all Company other than as set forth in Exhibit D. All of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid (except for the shares in an escrow described in the Company's Pre-Effective Amendment No. 3 to the Registration Statement on Form S-3 (Regis. No. 333-28125)) and nonassessable and have not been issued in violation of the preemptive rights of any securityholder of the Company. The offers and sales during the three years immediately prior to the date hereof of such outstanding securities were either registered under the Act and applicable state securities laws or exempt from such registration requirements. The Shares, when issued in accordance with the terms of the Exchange Offer and the Certificate of Designation, Preferences and Rights, will be validly issued and are will be fully paid and nonassessable; , with no personal liability attaching to the ownership thereof. The Reserved Shares have been duly authorized by all necessary corporate action reserved, and when issued in accordance with the terms of the CompanyShares, and, when issued the Warrants and delivered to and paid for pursuant to this Agreement, the Agent's Warrants will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such nonassessable and not subject to any preemptive or any other similar rights to subscribe for any of the Shares; and no holders of securities of personal liability will attach to the Company are entitled to have such securities registered under the Registration Statementownership thereof;
(dD) assuming (i) the capital stock accuracy of the Company conforms, as to legal matters, to information provided by the statements set forth under the heading "DESCRIPTION OF SECURITIES" Subscribers in the Prospectus Offering Documents and (ii) that the Placement Agent has complied in all material respectsrespects with the requirements of Section 4(2) of the Securities Act (and the provisions of Regulation D promulgated thereunder), the exchange of the Notes for Shares and Warrants is exempt from registration under the Securities Act and Regulation D promulgated thereunder;
(eE) neither the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the Shares, the Warrants, the Warrant Agreement, the Subscription Agreement and Registration Rights Agreement, or the Agent's Warrants nor compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and terms hereof or thereof, nor the consummation of the other transactions herein and or therein contemplated do not require the consentcontemplated, approvalhas, authorizationnor will, registration or qualification of or with any governmental authorityconflict with, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default underunder the Certificate of Incorporation or By-laws of the Company or the Subsidiaries, any indentureor, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel's knowledge, any material contract, instrument or document to which the Company is or the Subsidiaries are a party party, or by which the Company Company, the Subsidiaries or any of its their respective properties are bound, or, to such counsel's knowledge, violate any applicable law, rule, regulation, judgment, order or decree of any governmental agency or court having jurisdiction over the Company or the Articles of Incorporation or Bylaws of the Company, Subsidiaries or any statute of their respective properties or businesses;
(F) to such counsel's knowledge, there are no claims, actions, suits, investigations or proceedings before or by any judgmentarbitrator, decreecourt, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to instrumentality pending or threatened against or affecting the Company;
(j) Company or the Registration Statement is effective under Subsidiaries or involving the Act, any required filing properties of the Prospectus pursuant to Rule 424(b) has been made in Company or the manner Subsidiaries which might materially and within adversely affect the time period required by Rule 424(b); and no stop order suspending the effectiveness business, properties or financial condition of the Registration Statement Company or any amendment thereto has been issued the Subsidiaries or which might materially adversely affect the transactions or other acts contemplated by this Agreement or the Commissionvalidity or enforceability of this Agreement, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened except as set forth in or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedOffering Documents; and
(mG) such counsel shall also state that they has participated in the preparation of the Offering Documents and nothing has come to the attention of such counsel to cause her to have no reason to believe that the Registration Statement, as of its effective date, Offering Documents contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for the Prospectusfinancial statements, notes thereto and other financial information and statistical data contained therein, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such no 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3).
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinion, dated the Firm Closing Date, opinion of Xxxx Xxxxx, X'XxxxxEsq., Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for to the Company, substantially dated as of the date of each Closing to the effect that:
(a1) the The Company has been duly organized and is a corporation validly existing as a corporation and in good standing under the laws of the State of California, Nevada and is duly qualified to transact business as a foreign corporation for the transaction of business and is in good standing under the laws of all other jurisdictions where in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified qualify would not have a material adverse effect on the Company;Material Adverse Effect.
(b2) the The Company has the all corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; authority to enter into this Agreement and the Subscription Agreements and to carry out all of the terms its obligations hereunder and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusthereunder. No consents, there are no outstanding optionsapprovals, warrants, authorizations or other rights calling for the issuance orders of, and no commitment, plan or arrangement to issue or registerfilings with, any share court or governmental agency or body, are required for the Company to execute, deliver and perform its obligations under the Agency Agreement, or to authorize, issue, sell and deliver the Units, Shares and Purchase Option including the Shares underlying the Purchase Option (collectively referred to hereinafter as the "Securities") and to consummate the transactions and agreements contemplated by the Agency Agreement and the Subscription Agreements, except for (i) those authorizations, approvals, consents, orders and filings as have been made or obtained and are in full force and effect and (ii) such authorizations, approvals, consents, orders and filings under the Securities Act and the Blue Sky laws of capital stock of any state or jurisdiction in the Company; all of United States in which the shares of capital stock Securities may be offered, as to which legal counsel need not express any opinion.
(3) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Companynon-assessable. The authorized, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of outstanding capital stock of the Company is as set forth on Schedule 2.2 to the Agency Agreement. To such counsel's knowledge, the Company has no options, warrants or other convertible securities outstanding other than as set forth on Schedule 2.2 annexed to the Agency Agreement. To such counsel's knowledge, all of the issued and outstanding securities were issued in compliance with the registration requirements of the Securities Act and the rules and regulations promulgated thereunder or pursuant to an exemption from such registration requirements. To the knowledge of such counsel, all issued and outstanding securities of the Company, other than options for which no payment was required, have been duly authorized for quotation on and validly issued and are fully paid and non-assessable. None of the Nasdaq SmallCap Market; no holders of outstanding shares the Securities are subject to personal liability under the Certificate of capital stock Incorporation or Bylaws of the Company are entitled as or the Nevada Corporation Law solely by reason of being such to any preemptive or other rights to subscribe for any a holder. None of the Shares; issued and no holders of outstanding securities of the Company are entitled to have were issued in violation of statutory preemptive rights of any holders of such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal mattersor, to such counsel's knowledge, were issued in violation of similar contractual rights granted by the statements set forth under Company. All of the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution issued and delivery outstanding options and warrants to purchase shares of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly Common Stock were validly authorized by all necessary corporate action the Board of Directors and constitute valid and binding obligations of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium fraudulent conveyance and other laws of general applicability relating to or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities lawsequity.
(f4) The Underwriter's Warrants will conform to Company has authorized the description thereof in issuance and sale of the Registration Statement and the Prospectus, and when Securities by all requisite corporate action. When issued and paid for delivered by the Company in accordance with the terms of the agreement representing Agency Agreement and the Underwriter's WarrantsSubscription Agreements, will constitute legal, valid and binding obligations against payment of the Company entitled to consideration set forth herein, the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, Securities will be duly and validly issued, fully paid and non- assessable non-assessable. The holders of the Securities will not be subject to personal liability under the Certificate of Incorporation or Bylaws of the Company or the Nevada Corporate Law solely by reason of being such holders. The Securities are not and free will not be subject to the preemptive rights of preemptive rightsany holders of any security of the Company under the Nevada Corporate Law, to such counsel's knowledge, similar contractual rights granted by the Company. The forms of certificate used to evidence the Shares comply with the applicable requirements of the Certificate of Incorporation and Bylaws of the Company and the Nevada Corporate Law. The Company has reserved for issuance a sufficient number of shares of Common Stock to be issued upon exercise of the Purchase Option.
(g5) no legal Assuming that (a) a proper Form D is filed in accordance with Rule 503 of Reg D, (b) that the offer and the sale of the Securities by the Placement Agent was made in compliance with Rule 502(c) of Reg D and (c) that the representations of the Subscribers in the Subscription Agreements signed by them are true and correct (which facts will not be independently verified by such counsel), the sale by the Company of the Securities in the Offering is exempt from registration under the Securities Act.
(6) The Agency Agreement, the Subscription Agreements and the Purchase Option have each been duly and validly authorized and, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to, in each case: (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and other laws of general applicability relating to or governmental proceedings are pending affecting creditors' rights and to general principles of equity, (ii) the fact that the indemnification and contribution provisions set forth in this Agreement may be limited under federal and applicable state securities laws and by public policy, and (iii) the fact that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(7) The execution, delivery and performance by the Company of the Agency Agreement, the Subscription Agreements and the Purchase Option, the issuance and sale of the Securities, the performance by the Company of its obligations hereunder and thereunder (other than the performance by the Company of its obligations under the indemnification and contribution provisions of the Agency Agreement, as to which no opinion need be rendered), do not and will not, (a) violate the provisions of the Certificate of Incorporation or the Bylaws of the Company, (b) to such counsel's knowledge, will not constitute a breach of, or a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to any material contracts, agreements, instruments, leases or licenses of the Company; or (c) to such counsel's knowledge, will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company (other than the Blue Sky or securities laws or regulations of the various states, as to which counsel need not express any opinion).
(8) The statements in the Offering Documents have been reviewed by such counsel and, insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respects.
(9) To such counsel's knowledge, the Company is a party or to which the property of the Company is subject that are required to be described not (i) in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any violation of its properties that can reasonably be expected to, or, if determined adversely Certificate of Incorporation or Bylaws or any law applicable to the Company, wouldor any administrative regulation or administrative or court decree known to such counsel and applicable to the Company, or (ii) except as described in the Memorandum or on a schedule of exceptions to the Company's representations and warranties in the Agency Agreement, in any individual case or default in the aggregateperformance or observance of any obligation, result agreement, covenant or condition contained in any material adverse change in the businesscontracts, prospectsagreements, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuanceinstruments, offering leases and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, licenses to which the Company is a party or by which the Company or any of its properties are or assets may be bound, except for such violations or defaults as would not, singly or in the Articles aggregate, result in a Material Adverse Effect.
(10) To such counsel's knowledge, there are no claims, actions, suits, hearings, investigations, inquiries or proceedings of Incorporation any kind or Bylaws nature, before or by any court, governmental authority, tribunal or instrumentality pending or threatened against or affecting the Company or involving any of its property which might reasonably be expected to have a Material Adverse Effect, or which might adversely affect the transactions or other acts contemplated by the Agency Agreement.
(11) To such counsel's knowledge (which with respect to the foreign intellectual property shall be based upon patent counsel's conversation with the foreign intellectual property counsel that has rendered services to the Company), the Company owns the Intangibles free and clear of all liens, and security interests thereon as set forth on Schedule 2.19 to the Agency Agreement. To the best of such counsel's knowledge, there is no claim or action by any person pertaining to, or proceeding pending or threatened that challenges the rights of the Company with respect to any of the Intangibles. The Intangibles that have been registered in the United States Patent and Trademark Office, the United States Copyright Office and the requisite patent and copyright offices of other jurisdictions have been fully maintained and are in full force and effect except as specifically noted on Schedule 2.19 to the Agency Agreement.
(12) Counsel and/or counsels to the Company will also deliver the following statement to the Placement Agent with the foregoing opinion: On the basis of such counsel's participation, as counsel to the Company, or any statute or any judgment, decree, order, rule or regulation with representatives of any court or other governmental authority or any arbitrator known to the Company in preparation of the Offering Documents and such counsel's participation with representatives of the Company and the Placement Agent at meetings in which the contents of the Offering Documents and related matters were discussed and the examination by such counsel of such corporate records, statutes, documents and applicable to the Company;
(j) the Registration Statement is effective under the Actquestions of law as such counsel deemed necessary, any required filing but without independent verification by such counsel of the Prospectus pursuant to Rule 424(b) has been made accuracy, completeness and fairness of the statements contained in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the CommissionOffering Documents except as specifically set forth in such counsel's opinion, and no proceedings for that purpose have been instituted or, without commenting as to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and the notes thereto and the schedules and other financial data included or incorporated by reference therein, nothing has come to such counsel's attention that would lead such counsel to believe that the Offering Documents (except for the financial statements and statistical information contained thereinthe notes thereto and the schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel no statement need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectusrendered), as of its date or and as of the date of such opinionClosing, included contained or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Opinion of Counsel. The Representative Company and the Stockholder shall have received an opinion------------------ delivered to the Purchaser a favorable opinion of their counsel, ___________________________, dated the Firm Closing Datedate of Closing, of Xxxxxin form and substance satisfactory to the Purchaser and its counsel, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
: (a) the Company has been is a corporation duly organized and is organized, validly existing as a corporation in good standing and whose status is active under the laws of the State of California, Minnesota and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct carry on its business as described in it is now being conducted, to own or hold under lease the Registration Statement properties and the Prospectus; assets it now owns or holds under lease and to enter into and perform its obligations under this Agreement Agreement, and such counsel has no reason to carry out believe that the Company is not operating in material compliance with all of the terms applicable laws and provisions hereof to be carried out by it;
regulations; (cb) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement authorized, issued and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have is as set forth in Section 2.1 of this Agreement, and each of the issued and outstanding shares of such stock has been duly authorized and validly issued and are is fully paid and nonassessable; non-assessable and is reflected on the Shares have been duly authorized by all necessary corporate action stock ledger of the Company, and, when Company as being issued and delivered to and paid for pursuant solely owned on the date of such opinion by the Stockholder as set forth on Section 3.1 of the Disclosure Schedule to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(dc) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are the Stockholder have good and marketable title to the Company Stock, free and clear of any pledges, liens, restrictions, encumbrances or claims of any kind; (d) the execution, delivery and performance of this Agreement and all other documents to be executed by the Company in connection with this Agreement (the "Company Documents") have been duly authorized and approved by all requisite action of the sole director and stockholder of the Company, and this Agreement and all other Company Documents have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company subject to applicable bankruptcy, insolvency, moratorium and other similar laws of general application and such general principles of equity as a court having jurisdiction may apply; (e) this Agreement and all other documents to be executed by the Stockholder prior to or at the Closing in connection with this Agreement (the "Stockholder Documents") have been duly executed and delivered by the Stockholder, and constitute valid and legally binding obligations of the Stockholder, subject to applicable bankruptcy, insolvency, moratorium and other similar laws of general application and such general principles of equity as a court having jurisdiction may apply; (f) the execution and delivery of this Agreement and the other Company Documents did not, and the consummation of the transactions contemplated hereby and thereby will not, violate any provision of the Charter or By-Laws of the Company; (g) the execution and delivery of this Agreement and the other Company Documents and Stockholder Documents did not, and the consummation of the transactions contemplated hereby and thereby will not, violate any provision of any agreement, instrument, order, judgment or decree, of which such counsel has knowledge, to which the Stockholder or the Company may be a party or by which either of them is bound; (h) except as may be specified by such counsel, such counsel does not know of any suit or proceeding pending or threatened against or affecting the Company or the Stockholder, the respective businesses or properties of the Company or the Stockholder or the consummation of the transactions contemplated hereunder, or which seeks to restrain or prohibit the transactions contemplated by this Agreement; (i) the Commission;
Certificate and Articles of Merger have been duly authorized by all requisite action of the sole director and the sole stockholder of the Company, has been duly executed and delivered by the Company and, upon the filing thereof with the Maryland State Department of Assessments and Taxation and the Secretary of State of the State of Minnesota will be valid and effective as a statutory merger of the Purchaser and the Company under Minnesota law, in accordance with the terms thereof; (j) to the knowledge of such counsel, all regulatory and governmental approvals, consents and filings required of the Company or the Stockholder for the consummation of the transactions contemplated by this Agreement or any of the other Company Documents and Stockholder Documents have been obtained or made; and (k) to the Registration Statement knowledge of such counsel, all federal state and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) local taxes owed by the Company is not requiredhave been duly paid and that there are no outstanding tax liens or tax deficiency notices affecting the Company, andand all such approvals, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described consents or filings remain in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, full effect as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Opinion of Counsel. The Representative shall have received an opinion, dated At the Firm Closing Effective Date, you shall receive the favorable opinion of XxxxxReed Xxxxx XXX, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, dated the Effective Date, addressed to you substantially to the effect that:
(ai) the Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of California, Maryland and is duly qualified to transact do business as a foreign corporation and is in good standing under the laws in each other jurisdiction in which it owns or leases property of all other jurisdictions where the ownership a nature, or leasing transacts business of its properties or the conduct of its business requires a type, that would make such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyqualification necessary;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when after being duly issued and delivered to and paid for pursuant to this Agreementsold in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the non-assessable Shares; and no holders of securities holder thereof is or will be subject to personal liability for the obligations of the Company solely by reason of being such a holder; such Shares are entitled not subject to have the preemptive rights of any stockholder of the Company, and all corporate action required to be taken for the authorization, issue and sale of such securities registered under the Registration StatementShares has been validly and sufficiently taken;
(diii) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized and validly authorized, executed and delivered by all necessary corporate action or on behalf of the Company and each of this Agreement constitutes the valid, binding and the enforceable agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except except: (A) as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of relating to creditors' rights generally generally; (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity and, with respect to this Agreement, except as the court before which any proceedings may be brought; and (C) that rights to indemnify and contribution hereunder indemnity may be limited by applicable federal or state securities laws or the public policy underlying such laws.;
(fiv) The Underwriter's Warrants will conform the Registration Statement is effective under the Act and, to the description thereof best of such counsel's knowledge, no stop order has been issued nor are proceedings for a stop order pending or threatened under the Act;
(v) the Advisory Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company and the Advisor and constitutes the valid, binding and enforceable agreement of the Company and the Advisor except: (A) as may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally; and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings may be brought;
(vi) to the best of such counsel's knowledge and information, there is no litigation or governmental proceeding pending or threatened against the Company which might materially and adversely affect the business, properties, condition (financial or otherwise) or earnings of the Company, except as referred to in the Prospectus, and no consent, approval, authorization, registration, qualification, license or order of any court, regulatory or other governmental agency or body is required in connection with the consummation of the transactions contemplated by this Agreement or the Registration Statement and the Prospectus, except such as may be necessary under the Act or state "blue sky" or securities laws in connection with the Offering or such as may have been previously obtained;
(vii) neither the execution and when issued and paid for in accordance delivery of this Agreement or the Advisory Agreement nor compliance with the terms and provisions hereof or thereof will, and consummation of the agreement representing the Underwriter's Warrants, will constitute legal, valid transactions contemplated herein and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus do not and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregatewill not, result in any material adverse change in the business, prospects, financial condition or results of operations violation of the Company;
(h) no contract Articles or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuancebylaws, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach of or violation default (or an event which with the giving of notice or lapse of time or both would constitute a default) under, any of the terms and terms, provisions ofor conditions of any statute, order, judgment, writ, injunction, decree, agreement, rule, regulation, instrument or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, organizational document known to such counsel, to which the Company is a party or or, to the best of such counsel's knowledge and information, by which the Company or any of its properties are is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(jviii) the Registration Statement Advisor has been duly formed and is effective validly existing as a limited partnership in good standing under the Act, any required filing laws of the Prospectus pursuant Commonwealth of Pennsylvania as a limited partnership with full power and authority to Rule 424(b) has been made conduct the business in which it proposes to engage as described in the manner Prospectus and within the time period required by Rule 424(b); is duly qualified to do business and no stop order suspending the effectiveness is in good standing in each other jurisdiction in which it transacts business of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for a type that purpose have been instituted or, to the knowledge of would make such counsel, are threatened or contemplated by the Commissionqualification necessary;
(kix) Carex Xxxancial Corporation has been duly incorporated and is validly existing as a corporation in good standing under the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements laws of the Act Commonwealth of Pennsylvania with full power and authority to conduct the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely business in which it engages as described in the Prospectus, will not be required . Carex Xxxancial Corporation is duly qualified to do business as a result foreign corporation and is in good standing in each other jurisdiction in which it owns or leases property of the sale nature or transacts business of a type, that would make such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; andqualification necessary;
(mx) such counsel shall also state that the statements in the Prospectus under the captions "Risk Factors -- Failure to qualify as a REIT could adversely affect our operations and ability to make distributions," "Description of Shares" and "United States Federal Income Tax Considerations" insofar as they have no reason to believe that are, or refer to, statements of law or legal conclusions, are correct and fairly present the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact information required to be stated therein or necessary to make shown therein; and In rendering the statements therein not misleading or that the Prospectusopinions set forth above, counsel may rely, as to matters of its date or law of states other than Pennsylvania, upon the date opinions of such opinionother counsel, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case satisfactory in form and substance to you, and counsel shall state such counsel need not express any opinion as opinions are satisfactory in form and scope to the financial statements them and other financial and statistical information contained therein. In rendering any such opinion, such counsel that they believe you may rely on them, and as to matters of fact, to the extent such counsel deems properupon communications, on statements and certificates of responsible from public officials, and certifications and statements from officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Corporate Property Associates 15 Inc)
Opinion of Counsel. The Representative shall have received Subscribers shall, upon the Closing, receive an opinion, dated opinion letter from counsel to the Firm Closing Date, Company subject to reasonable and customary limitations and qualifications and reliance on the certificates of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the officers of the Company, substantially to the effect that:
(ai) the The Company has been is duly organized incorporated and is validly existing as a corporation in good standing under the laws and jurisdiction of the State of California, and its incorporation. The Company and/or its subsidiaries are duly qualified to transact do business as a foreign corporation and is in good standing under the laws of in all other jurisdictions where the ownership Company and/or its subsidiaries owns or leasing of its properties leases properties, maintains employees or the conduct of its business requires such qualificationconducts business, except where for jurisdictions in which the failure to be so qualified qualify would not have a material adverse effect on the Company;, and has all requisite corporate power and authority to own its properties and conduct its business.
(bii) Except as set forth in the Reports there is no action, and to counsel's knowledge, proceeding or investigation pending, or threatened against the Company has which might result, either individually or in the aggregate, in any material adverse change in the business or financial condition of the Company.
(iii) Except as set forth in the Reports, without an independent investigation, the Company is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.
(iv) Except as set forth in the Reports and to counsel's knowledge, there is no action, suit, proceeding or investigation by the Company currently pending.
(v) The Preferred Stock, which shall be issued at the Closing, will be duly authorized and validly issued under the laws of the Company's State of Incorporation, except for the Shareholder Approvals referred to in Section 3.21 hereof.
(vi) This Subscription Agreement, the issuance of the Preferred Stock and Warrants, and the issuance of Common Stock, upon conversion of the Preferred Stock and/or exercise of the Warrants, have been duly approved by all required corporate power action and that all such securities, upon delivery, shall be validly issued and outstanding, fully paid and nonassessable, except for the approvals referenced in Section 3.21 hereof.
(vii) The issuance of the Securities will not violate the applicable listing agreement between the Company and any securities exchange or market on which the Company's securities are listed.
(viii) Assuming the accuracy of the representation and warranties of the Company and the Subscribers set forth in this Subscription Agreement, the offer, issuance and sale of the Preferred Stock, Warrants and shares of Common Stock to own or lease its properties; be issued upon exercise and/or conversion to conduct its business as the Subscriber pursuant to this Agreement are exempt from the registration requirements of the Act.
(ix) As more specifically described in the Registration Statement and Reports, the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have consists of 24,000,000 shares of Common Stock, $.05 par value per share ("Common Stock") and 1,000,000 shares of Preferred Stock, par value $.01 per shares.
(x) The Common Stock is registered pursuant to Section 12(b) or Section 12(g) of the 1934 Act and to the best of Counsel's knowledge without an independent investigation, the Company has timely filed all the material required to be filed pursuant to Sections 13(a) or 15(d) of such Act for a period of at least twelve months preceding the date hereof.
(xi) Except as provided in Section 3.21 hereof, the Company has the requisite corporate power and authority to enter into the Agreements and to sell and deliver the Securities and the Common Stock to be issued upon the conversion of the Securities as described in this Agreement; the Agreement has been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of by the Company, andto the best of our knowledge, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares no approval of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive governmental or other rights to subscribe body is required for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this the Agreements by the Company or the consummation of the transactions contemplated thereby; the Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized and validly executed and delivered by all necessary corporate action and on behalf of the Company Company, and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation agreement of the Company Company, enforceable in accordance with its terms, except as such enforceability may be limited by general equitable principles, bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar other laws affecting the enforceability of creditors' creditors rights generally generally, and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify compliance with federal, state and contribution hereunder may be limited by applicable federal or state foreign securities laws, as to which no opinion is expressed.
(fxii) The Underwriter's Warrants will conform to To the description thereof in knowledge of counsel, the Registration Statement execution, delivery and the Prospectus, and when issued and paid for in accordance with the terms performance of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant Agreements by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated its obligations thereunder do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in will not constitute a breach or violation of any of the terms and provisions of, or constitute a default underunder or conflict with or violate any provision of (i) the Company's Certificate of Incorporation or By-Laws, (ii) any indenture, mortgage, deed of trust, lease agreement or other agreement or instrument, known to such counsel, instrument to which the Company is a party or by which it or any of its property is bound, (iii) any applicable statute or regulation, (iv) or any judgment, decree or other of any court or governmental body having jurisdiction over the Company or any of its properties are boundproperty.
(xiii) The issuance of the Preferred Stock and Warrants, or to A Subscribers and the Articles issuance of Incorporation or Bylaws the Preferred Stock to H. Xxxxx Xxxx (Subscriber), a director of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable pursuant to the Company;
(j) the Registration Statement is effective under the Actterms and conditions set forth in this Agreement does not violate any federal, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement state or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3foreign law.
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinion, dated At the Firm Closing Effective Date, you shall receive the favorable opinion of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx Reed Smith LLP, Los Angeles, California counsel for the Company, dated the Effective Date, adxxxxxxx xx you substantially to the effect that:
(ai) the Company has been duly organized incorporated and is validly existing exists as a corporation in good standing under the laws of the State of California, Maryland and is duly qualified to transact do business as a foreign corporation and is in good standing under the laws in each other jurisdiction in which it owns or leases property of all other jurisdictions where the ownership a nature, or leasing transacts business of its properties or the conduct of its business requires a type, that would make such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companyqualification necessary;
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when after being duly issued and delivered to and paid for pursuant to this Agreementsold in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the non-assessable Shares; and no holders of securities holder thereof is or will be subject to personal liability for the obligations of the Company solely by reason of being such a holder; such Shares are entitled not subject to have the preemptive rights of any stockholder of the Company, and all corporate action required to be taken for the authorization, issue and sale of such securities registered under the Registration StatementShares has been validly and sufficiently taken;
(diii) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized and validly authorized, executed and delivered by all necessary corporate action or on behalf of the Company and each of this Agreement constitutes the valid, binding and the enforceable agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except except: (A) as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of relating to creditors' rights generally generally; (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity and, with respect to this Agreement, except as the court before which any proceedings may be brought; and (C) that rights to indemnify and contribution hereunder indemnity may be limited by applicable federal or state securities laws or the public policy underlying such laws.;
(fiv) The Underwriter's Warrants will conform the Registration Statement is effective under the Securities Act and, to the description thereof best of such counsel's knowledge, no stop order has been issued nor are proceedings for a stop order pending or threatened under the Securities Act;
(v) the Advisory Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company and the Advisor and constitutes the valid, binding and enforceable agreement of the Company and the Advisor except: (A) as may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally; and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings may be brought;
(vi) to the best of such counsel's knowledge and information, there is no litigation or governmental proceeding pending or threatened against the Company which might materially and adversely affect the business, properties, condition (financial or otherwise) or earnings of the Company, except as referred to in the Prospectus, and no consent, approval, authorization, registration, qualification, license or order of any court, regulatory or other governmental agency or body is required in connection with the consummation of the transactions contemplated by this Agreement or the Registration Statement and the Prospectus, except such as may be necessary under the Securities Act or state "blue sky" or securities laws in connection with the Offering or such as may have been previously obtained;
(vii) neither the execution and when issued and paid for in accordance delivery of this Agreement or the Advisory Agreement nor compliance with the terms and provisions hereof or thereof will, and consummation of the agreement representing the Underwriter's Warrants, will constitute legal, valid transactions contemplated herein and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus do not and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregatewill not, result in any material adverse change in the business, prospects, financial condition or results of operations violation of the Company;
(h) no contract Articles or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuancebylaws, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach of or violation default (or an event which with the giving of notice or lapse of time or both would constitute a default) under, any of the terms and terms, provisions ofor conditions of any statute, order, judgment, writ, injunction, decree, agreement, rule, regulation, instrument or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, organizational document known to such counsel, to which the Company is a party or or, to the best of such counsel's knowledge and information, by which the Company or any of its properties are is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(jviii) the Advisor has been duly formed and validly exists as a corporation in good standing under the laws of the State of Delaware with full power and authority to conduct the business in which it proposes to engage as described in the Prospectus and is duly qualified to do business and is in good standing in each other jurisdiction in which it transacts business of a type that would make such qualification necessary;
(ix) Carey Financial Corporation has been duly incorporated and xxxxxly exists as a corporation in good standing under the laws of the State of Delaware with full power and authority to conduct the business in which it engages as described in the Prospectus. Carey Financial Corporation is duly qualified to do businesx xx a foreign corporation and is in good standing in each other jurisdiction in which it owns or leases property of the nature or transacts business of a type, that would make such qualification necessary;
(x) the statements in the Prospectus under the captions "Risk Factors -- Failure to qualify as a REIT could adversely affect our operations and ability to make distributions," "Description of Shares" and "United States Federal Income Tax Considerations" insofar as they are, or refer to, statements of law or legal conclusions, are correct and fairly present the information required to be shown therein; and
(xi) at the time the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner was filed and within at the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commissionit initially became effective, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained the prior performance tables included therein, as to which such counsel need express no opinionopinion is rendered) comply complied as to form in all material respects with the applicable requirements of the Securities Act and the Rules Regulations and Regulations;
(l) nothing came to such counsel's attention which would lead such counsel to believe that either the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in Registration Statement or the Prospectus, will not be required as a result of at the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that time they have no reason to believe that the Registration Statement, as of its effective dateinitially became effective, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that . In rendering the opinions set forth above, counsel may rely, as to matters of law of states other than Pennsylvania, upon the opinions of other counsel, in each case satisfactory in form and substance to you, and counsel shall state such counsel need not express any opinion as opinions are satisfactory in form and scope to the financial statements them and other financial and statistical information contained therein. In rendering any such opinion, such counsel that they believe you may rely on them, and as to matters of fact, to the extent such counsel deems properupon communications, on statements and certificates of responsible from public officials, and certifications and statements from officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Samples: Sales Agency Agreement (Corporate Property Associates 16 Global Inc)
Opinion of Counsel. The Representative Company shall have received an opinionopinion from counsel to Acquiror and Merger Sub, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for in form satisfactory to the Company's counsel, substantially to the effect that:
(a1) the Company Acquiror and Merger Sub each has been duly organized and is a validly existing as a corporation in good standing under the laws of the State of California, New York with full power and duly qualified authority to transact business as a foreign corporation own and is in good standing under the laws of all other jurisdictions where the ownership or leasing of operate its properties or the conduct of and to carry on its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Companycurrent and proposed business;
(b2) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement This Agreement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company transactions contemplated hereby has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the CompanyBoard of Directors of Acquiror and the Board of Directors and sole stockholder of Merger Sub, and, when issued and delivered no stockholder of Acquiror or Merger Sub is entitled to and paid for pursuant appraisal rights with respect to the Merger contemplated by this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d3) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this This Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized executed and delivered by all necessary corporate action of the Company Acquiror and each of this Agreement Merger Sub and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Acquiror and Merger Sub legally enforceable against Acquiror and Merger Sub in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization and other laws of general applicability relating to or similar laws affecting the enforceability of creditors' rights generally now or hereafter in effect, and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companyequitable principles;
(h4) no contract Neither the execution, delivery or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions performance of this Agreement and the agreement representing the Underwriter's Warrants and nor the consummation of the other transactions herein and therein contemplated contemplated, nor compliance with the terms hereof by the Acquiror do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or will conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, the certificate of organization or the bylaws of the Acquiror, any indenture, mortgage, deed of trust, lease trust or other contract, agreement or instrument, known to such counsel, instrument to which such counsel knows, after due inquiry, the Company Acquiror is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted orwhich, to the knowledge of such counselcounsel after due inquiry, the Acquiror or any of its assets or properties is bound, or to the knowledge of such counsel after due inquiry, any law, order, rule or regulation, judgment, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Acquiror or its business or any of its properties; and no further consent, approvals, authorizations or orders of agencies, officers or other regulatory authorities are threatened or contemplated by necessary for the Commissionconsummation of the Merger;
(k5) The authorized capital stock of Acquiror consists solely of 50 million shares of common stock, par value $0.001, of which as of the Registration Statement Closing Date 242,500 shares of common stock of Acquiror were issued and outstanding excluding those shares to be issued pursuant to the Merger, the Stock Split, the Private Placement and the Prospectus and each amendment or supplement thereto Placement Agent Warrants. To the knowledge of such counsel, (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinioni) comply as to form in all material respects with the applicable requirements of the Act issued and the Rules outstanding shares of Acquiror Common Stock are duly authorized, validly issued, fully paid and Regulationsnonassessable, and (ii) there are no outstanding options, warrants, calls or other rights of any kind to acquire securities or ownership interests in Acquiror or other agreements obligating Acquiror to issue or sell any shares of capital stock of Acquiror or to grant, extend or enter into any agreements with respect thereto;
(l6) The Acquiror Common Stock, when issued pursuant to the Company is not requiredMerger Agreement, andwill be duly authorized, if the Company uses the proceeds validly issued and outstanding, fully paid and non-assessable shares of the sale common stock, $.001 par value of the Firm Shares Acquiror, free and the Option Shares solely as described in the Prospectusclear of all claims, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedliens and Encumbrances; and
(m7) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light Upon filing of the circumstances Certificate of Merger with the Secretary of State of New York, the Merger shall be effective under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to New York Business Corporation Law and Acquiror will become the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely as to matters sole owner of fact, to the extent such counsel deems proper, on certificates of responsible officers all of the Company Common Stock, free and public officials. The foregoing opinion may be limited to the laws clear of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3all Encumbrances.
Appears in 1 contract
Samples: Merger Agreement (Edg Capital Inc)
Opinion of Counsel. The Representative AVS Companies shall have received an opinion, opinion dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California Effective Date from counsel for each of the CompanyCompanies and the Shareholders, substantially in form attached hereto, to the effect that:
(a) Each of the Company has been Companies is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, Florida and has the corporate power to carry on the business now conducted by it and to own or lease the properties now owned or leased by it;
(b) Each of the Companies is duly qualified and to transact do business as a foreign corporation and is in good standing under the laws of all other jurisdictions in each jurisdiction where the ownership or leasing character of its properties owned or held under lease or held under lease or the conduct nature of its business requires activities make such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by itqualification necessary;
(c) the The Company has an authorized capital stock as set forth under obtained all necessary authorizations and consents of its Boards of Directors and its Shareholders to effect the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly Merger;
(d) All issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any each of the Shares; and no holders of securities of the Company Companies are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, owned as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respectson SCHEDULE 3.5 hereto;
(e) Such counsel does not know of any litigation, proceeding or investigation then pending or threatened which could reasonably be expected to result in any Material Adverse Effect on each of the Companies, or which questions the validity of this Agreement;
(f) Such counsel does not know or have reason to believe that any event has occurred or state of facts exists which would constitute a breach of any of the representations and warranties made by the Shareholders pursuant to Article III of this Agreement;
(g) To the knowledge of such counsel, the execution and delivery of this Agreement by each of the Companies and the Shareholders, the performance by each of the Companies and the Shareholders of their respective obligations hereunder and the consummation by each of them of the transactions contemplated by this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action will not (a) contravene any provision of the Company and Articles of Incorporation or Bylaws of each of this the Companies, (b) violate or conflict with any law, statute, ordinance, rule, regulation, decree, writ, injunction, judgment or order of any Governmental Authority or of any arbitration award which is either applicable to, binding upon or enforceable against either of the Companies or the Shareholders, (c) conflict with, result in any breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, or give rise to a right of payment or right to terminate, amend, modify, abandon or accelerate, any Contract which is applicable to, binding upon or enforceable against either of the Companies or the Shareholders, (d) result in or require the creation or imposition of any Lien upon or with respect to any of the properties or assets of any of the Companies, (e) give to any individual or entity a right or claim against either of the Companies or the Shareholders or (f) require the consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, any court or tribunal or any other Person, except any SEC and other filings required to be made by AVS or any filings required to be made by the parties under the HSR Act, if any;
(h) This Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of each of the Company Companies and the Shareholders, and enforceable against each of them in accordance with its terms, except as such enforceability enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar other laws affecting the enforceability enforcement of creditors' rights generally and subject to or general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities lawsequitable principles.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Merger Agreement (Aviation Sales Co)
Opinion of Counsel. The Representative Buyer shall have received an opinionopinion from counsel to the Seller and the Members, dated the Firm Closing Date, of Xxxxxin form and substance satisfactory to the Buyer, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company Seller has been duly organized and is validly existing as a corporation subsisting in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;New York.
(b) the Company has authorized and outstanding membership interests of the corporate power to own or lease its properties; to conduct its business Seller is as described represented by the Members in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all each membership interest has been duly and validly authorized and issued, is fully paid and nonassessable and was not issued in violation of the terms and provisions hereof to be carried out by itpreemptive rights of any member;
(c) to the Company has an authorized capital stock as set forth under actual knowledge of such counsel, the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no Seller does not have any outstanding options, warrants, calls, conversion rights or other rights calling for the issuance of, and no commitment, plan or arrangement commitments of any kind to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for sell any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementits membership interests except as disclosed on Schedule 5.3 ;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement has been duly authorized, executed and delivered by the Seller and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company Members and each of this Agreement and the agreement representing the Underwriter's Warrants is constitutes a valid and binding obligation agreement of the Company Seller and the Members enforceable against them in accordance with its terms except as such enforceability may be limited by subject to bankruptcy, moratorium, insolvency, reorganization, moratorium or arrangement and other similar laws relating to or affecting the enforceability rights of creditors' rights generally and subject .
(e) except to general principles the extent set forth on Schedule 5.15, there are no claims, actions, suits or proceedings pending, or to the knowledge of equity andsuch counsel threatened against or affecting the Seller or any of the Members, with respect to this Agreementat law or in equity, except as rights to indemnify and contribution hereunder may be limited or before or by applicable federal any federal, state, municipal or state securities laws.other governmental department, commission, board, bureau, agency or instrumentality wherever located;
(f) The Underwriterto such counsel's Warrants will conform actual knowledge, no notice to, consent, authorization, approval or order of any court or governmental agency or body or of any other third party is required in connection with the execution, delivery or consummation of this Agreement by the Seller and the Members or for the transfer to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms Buyer of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.Assets;
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions execution of this Agreement and the agreement representing the Underwriter's Warrants and the consummation performance of the other transactions herein and therein contemplated do obligations hereunder will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with violate or result in a breach or violation of constitute a default under any of the terms and or provisions ofof the Seller's Articles of Organization or the operating agreement of the Seller or to the such counsel's knowledge of any lease, instrument, license, permit or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company Seller is a party or by which the Company Seller or any of its properties members are is bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(mh) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as other matters incident to the financial statements and other financial and statistical information contained therein. In rendering any such opinion, such counsel may rely matters set forth herein as to matters of fact, to reasonably required by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Buyer.
Appears in 1 contract
Opinion of Counsel. The Representative Buyer shall have received delivered to Sellers an opinion------------------ opinion of counsel to Buyer and XxXxxx, dated as of the Firm Closing Date, of Xxxxxin form and substance satisfactory to Sellers, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been Buyer is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of CaliforniaIowa; XxXxxx is a corporation duly incorporated, validly existing and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing State of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;Delaware.
(b) Each of Buyer and XxXxxx have the Company has the necessary corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; authority to enter into this Agreement and to carry out all of consummate the terms and provisions hereof to be carried out by it;transactions contemplated hereby:
(c) All corporate action by each of Buyer and XxXxxx required in order to authorize the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement execution and delivery of this Agreement and the Prospectus, there are no outstanding options, warrants, or other rights calling for consummation of the issuance oftransactions contemplated hereby has been duly and validly taken, and no commitment, plan or arrangement to issue or register, any share of capital stock approval of the Company; all stockholders of the shares of capital stock of the Company have Buyer and XxXxxx is required in connection therewith or, if required, such approval has been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statementobtained;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution This Agreement has been duly executed and delivery of delivered by each of this Agreement Buyer and XxXxxx and is the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company Buyer and XxXxxx, enforceable against Buyer and XxXxxx in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of relating to creditors' rights generally and subject to general or by equitable principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof whether considered in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants an action at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case law or in the aggregate, result in any material adverse change in the business, prospects, financial condition equity) or results of operations of the Companyother customary limitations reasonably satisfactory to Sellers' counsel;
(he) no contract or other document is required to be described in Neither the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering execution and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions delivery of this Agreement by Buyer and the agreement representing the Underwriter's Warrants and XxXxxx nor the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or hereby will (i) violate the Articles of Incorporation or Bylaws of the Companyeach of Buyer and XxXxxx, (ii) except as set forth in this Agreement or exhibits or schedules hereto, breach, or cause a default under, any statute term or any judgment, decree, order, rule or regulation provision of any court material contract or other governmental authority agreement to which Buyer or any arbitrator known to such counsel XxXxxx is a party and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.has knowledge or
Appears in 1 contract
Opinion of Counsel. The Representative Ameriprise shall have received an opinion, dated receive the Firm Closing Date, favorable opinion of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx Clifford Chance US LLP, Los Angeles, California counsel for the Company, dated as of the date hereof or as of each Documented Closing Date, addressed to Ameriprise substantially to the effect that:
(ai) the Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company has the Maryland with corporate power and authority to own or lease its properties; to assets and conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(cii) based on certificates from public officials, such counsel confirms that the Company has an authorized capital stock as is in good standing and qualified to do business in each state set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; on Exhibit A hereto;
(iii) the Shares have been duly authorized by all necessary corporate action of the Company, and, when after being duly issued and delivered to and paid for pursuant to this Agreementsold in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid and nonassessablenon-assessable; no holder of Shares will be subject to personal liability under the shares of capital stock MGCL for the obligations of the Company have been duly authorized for quotation on solely by reason of being a holder of Shares; the Nasdaq SmallCap Market; no holders Shares are not subject to the preemptive rights of outstanding shares of capital stock any stockholder of the Company are entitled as such under the Company's Articles of Incorporation ("Articles") or Bylaws ("Bylaws") or the MGCL, and all corporate action required to any preemptive or other rights to subscribe be taken by the Company for any the authorization, issue and sale of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration StatementShares has been validly taken;
(div) the capital stock each of the Company conformsSales Agency Agreement, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution Advisory Agreement and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized authorized, executed and delivered by all necessary corporate action or on behalf of the Company Company, and each of the Sales Agency Agreement and this Agreement and constitutes the agreement representing the Underwriter's Warrants is a valid and binding obligation agreement of the Company, enforceable against the Company in accordance with its terms except (A) as such enforceability enforcement thereof may be limited by subject to bankruptcy, insolvency, liquidation, reorganization, moratorium or other similar laws affecting the enforceability of relating to creditors' rights generally including, without limitation, applicable fraudulent conveyance and transfer laws, (B) as enforcement thereof may be affected by principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing whether considered at law 18 or in equity, (C) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity andthe court before which any proceedings may be brought, with respect and (D) to this Agreement, except as rights to indemnify the extent that the enforceability of the indemnification and contribution hereunder provisions may be limited by applicable federal or state securities laws or the public policy underlying such laws.;
(fv) The Underwriter's Warrants will conform the Registration Statement, as of the date it was declared effective, and the Prospectus, as of its date, complied as to form in all material respects with the description thereof requirements for registration on Form S-11 under the Securities Act and the rules and regulations of the Commission thereunder, it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules or other financial or accounting data, included in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel has assumed that the statements made in the Registration Statement and the Prospectus, Prospectus are correct and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.complete;
(gvi) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, filed under Form 8-A pursuant to the best Securities Exchange Act of 1934, as amended (the "Exchange Act") (the "8-A Registration Statement") complied as to form, when so filed, in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. For purposes of this paragraph, such counsel has assumed that the statements made in the 8-A Registration Statement are correct and complete;
(vii) to the knowledge of such counsel, the Company is not a party to any agreement that would require the inclusion in the Registration Statement and the Prospectus of shares owned by any person or entity;
(viii) to the knowledge of such counsel, there is no such proceedings have been threatened litigation or governmental proceeding pending against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document which is required to be described in the Registration Statement but which is not described in the Registration Statement; and no consent, approval, authorization, registration, qualification, license or order of any New York or federal court, regulatory or other governmental agency or body or under the MGCL is required in connection with the execution and delivery of, or the Prospectus consummation by the Company of the transactions contemplated by, the Sales Agency Agreement, this Agreement or to be filed as an exhibit to the Registration Statement that is not described therein and the Prospectus, except such as may be necessary under New York "blue sky" or filed securities laws in connection with the Offering or such as requiredmay have been previously obtained;
(iix) neither the issuance, offering execution and sale of the Shares and the Underwriter's Warrant delivery by the Company pursuant to this of the Sales Agency Agreement, this Agreement or the Advisory Agreement nor compliance by the Company with the other terms and provisions thereof will, and consummation by the Company of the transactions contemplated by the Sales Agency Agreement, this Agreement and by the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated Prospectus do not require the consentand will not, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under(or an event which with the giving of notice or lapse of time or both would constitute a default) under the Articles or Bylaws, or any New York or federal statute, law, regulation or rule known to such counsel to be binding on the Company, or of any decree, judgment or order known to such counsel to be binding on the Company, or any contract, agreement, indenture, mortgage, deed of trust, lease or other sublease, agreement or instrument, known other arrangement identified to such counsel, us in an officer's certificate (which officer's certificate purports to identify all agreements to which the Company is a party or by which the Company or any of its properties are boundparty, or the Articles of Incorporation or Bylaws to which any of the Company's properties is subject, the breach of or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Companydefault under which would have a Material Adverse Effect);
(jx) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, there are threatened no contracts or contemplated by documents of a character required to be described in the CommissionRegistration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed;
(kxi) the statements in the Prospectus under the captions "Risk Factors-The limit on the number of shares of CPA(R):16 - Global a person may own may discourage a takeover," "Risk Factors - Maryland law could restrict change in control," "Risk Factors-Our articles of organization permit our board of directors to issue stock with terms that may subordinate the rights of the holders of our current common stock or discourage a third party from acquiring us," "Description of Shares," and "Management Compensation," insofar as they purport to describe or summarize certain provisions of the agreements, statutes or regulations referred to therein, are accurate descriptions or summaries in all material respects;
(xii) the Company is not required to register as an investment company as that term is defined in the Investment Company Act of 1940, and will not be so required to register upon completion of the Offering contemplated by this Agreement and the application of the net proceeds of the offering as described in the Prospectus;
(xiii) commencing with the Company's taxable year ended December 31, 2004, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and its proposed method of operation (as described in the Registration Statement and in the Certificate of Representations) will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code; and
(xiv) the description of the law and legal conclusions contained in the Registration Statement under the caption "United States Federal Income Tax Considerations" to the extent they describe applicable United States federal income tax laws are correct in all material respects. In addition, such counsel shall state that, in the course of acting as counsel to the Company in connection with the preparation by the Company of the Registration Statement and Prospectus, such counsel has reviewed the Registration Statement and the Prospectus, and has communicated with officers and other representatives of the Company and the independent public accountants for the Company with respect to the contents of the Registration Statement and the Prospectus and each amendment or supplement thereto (in each caserelated matters. Such counsel has also reviewed and relied upon certain corporate records and documents, other than the financial letters from counsel and oral and written statements of officers and other financial representatives of the Company and statistical information contained therein, others as to which the existence and consequence of certain factual and other matters. While the limitations inherent in the independent verification of factual matters and the character of determinations involved in the preparation of a disclosure document are such, however, that such counsel need express no opinion) comply as to form in all material respects with not assume any responsibility for the applicable requirements accuracy, completeness or fairness of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described statements contained in the ProspectusRegistration Statement or the Prospectus or any amendments to them, will not be required except as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940set forth in subparagraph (xi) above, as amended; and
(m) such counsel shall also state that, based on the foregoing, nothing came to such counsel's attention that they have no reason leads such counsel to believe that the Registration Statement, as of its at the time it initially became effective dateor at the time that any post-effective amendment thereto became effective, contained any at such times an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel expresses no belief as to financial statements and related notes and schedules and other financial or accounting data included therein or omitted therefrom), or that the Prospectus, as of its date date, or the date of such opinionhereof, included or includes any an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided misleading (except that such counsel expresses no belief as to financial statements and related notes and schedules and other financial or accounting data included therein or omitted therefrom). In rendering the opinions set forth above, counsel may rely, as to matters of law of states other than New York and the MGCL, upon the opinions of other counsel, in each case satisfactory in form and substance to Ameriprise and counsel shall state such counsel need not express any opinion as opinions are satisfactory in form and scope to the financial statements them and other financial and statistical information contained therein. In rendering any such opinion, such counsel that they believe Ameriprise may rely on them, and as to matters of fact, to the extent such counsel deems properupon communications, on statements and certificates of responsible from public officials, and certifications and statements from officers of the Company and public officialsCompany. The foregoing opinion In addition, in making the statement of its belief set forth in the immediately preceding paragraph, such counsel may be limited to assume the laws accuracy of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus matters set forth in the opinion of Reed Smith LLP delivered pursuant to Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.37(d).
Appears in 1 contract
Samples: Selected Dealer Agreement (Corporate Property Associates 16 Global Inc)
Opinion of Counsel. The Representative Companies and the Shareholders shall have received an opinionopinion of Xxxxx Xxxxxxx & Xxxx LLP, counsel to FYI and Buyer, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for Date and in form and substance satisfactory to the CompanyCompanies and the Shareholders, substantially to the effect that:
: (a) the Company has been each of FYI and Buyer is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
Delaware; (b) the Company has the corporate power to own or lease its properties; counsel's knowledge (subject to conduct its business as described in the Registration Statement compliance with applicable federal and the Prospectus; to enter into this Agreement and to carry out state securities laws), all shares of the terms and provisions hereof FYI Stock to be carried out by it;
(c) issued to the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for Shareholders pursuant to this AgreementAgreement will, will when issued, be validly issued, fully paid and nonassessable; the shares nonassessable and will not be issued in violation of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive rights of any shareholder of FYI; (c) the execution and delivery of this Agreement and all other agreements and documents contemplated hereby by FYI and Buyer and the performance by FYI and Buyer of their respective obligations under this Agreement and such other agreements and documents do not constitute a violation of or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered a default under the Registration Statement;
certificates of incorporation or bylaws of FYI or Buyer, each as amended, or any agreements, arrangements, commitments, orders, judgments or decrees to which either of them is a party or by which either of them or their respective assets are bound of which such counsel has knowledge; (d) each of FYI and Buyer has the capital stock of corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Company conforms, as other agreements and documents contemplated hereby (to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
which each is a party); (e) the execution and delivery of each of this Agreement and the agreement representing other agreements and documents by FYI and Buyer and the Underwriter's Warrants performance by FYI and Buyer of their respective obligations hereunder and under the other agreements and documents have been duly authorized by all necessary requisite corporate action on the part of the Company FYI and each of Buyer; (f) this Agreement and the each other agreement representing the Underwriter's Warrants and document contemplated hereby is a valid and binding obligation of FYI and Buyer, respectively, enforceable against FYI and Buyer (to the Company extent each is a party) in accordance with their respective terms, except as that (i) such enforceability enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally generally, (ii) the remedy of specific performance and injunctive relief are subject to general principles certain equitable defenses and to the discretion of equity andthe court before which any proceedings may be brought, and (iii) rights to indemnification hereunder may be limited under applicable securities laws; and (g) to such counsel's knowledge, no consent, approval, authorization or other action by, or filing with, any governmental authority, regulatory body or other person is required to be obtained by FYI or Buyer in connection with respect to the execution, delivery or performance by them of their respective obligations under this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been duly obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fyi Inc)
Opinion of Counsel. The Representative APG and AII shall have received an a favorable opinion, dated reasonably satisfactory to APG, of Mills & Mills, counsel to IAI and the Firm Shareholders, daxxx xs ox xxx Closing Date, of Xxxxxaddressed to APG and AII, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been 7.9.1 IAI is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of CaliforniaCalifornia and have all requisite power to own, lease and duly qualified to transact operate their respective assets, properties and business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;now conducted.
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement 7.9.2 IAI and the Prospectus; Shareholders have the full right, power and authority required to enter into into, execute and deliver this Agreement and to carry out all of the terms other agreements and provisions hereof instruments to be carried out executed by it;them in connection herewith and to perform fully their obligations hereunder and thereunder.
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; 7.9.3 This Agreement and all other than as disclosed in the Registration Statement agreements and instruments to be executed by IAI and the ProspectusShareholders in connection herewith have been duly and validly authorized, there are no executed and delivered by them and constitute the legal, valid and binding obligations of them, enforceable in accordance with their respective terms, except to the extent that such enforceability is limited by bankruptcy, insolvency, moratorium or similar laws now or hereafter in effect relating to or limiting creditors' rights generally.
7.9.4 To the best knowledge of such counsel, the authorized, issued and outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the CompanyIAI is as stated in Paragraph 4.4 and Exhibit 4.4 hereof; all of the shares of issued and outstanding capital stock of the Company IAI have been duly authorized and are validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issuedoutstanding, fully paid and nonassessable; .
7.9.5 To the best knowledge of such counsel, IAI is not a party to or bound by any outstanding option or agreement to sell, issue, buy or otherwise dispose of or acquire any shares of capital stock or any debt security of IAI.
7.9.6 To the best knowledge of such counsel, there is no pending claim, action, suit, investigation or proceeding of any kind in which IAI or any of the Company Shareholders has been served with process or otherwise received actual notice, and there is no threat of any such claim, action, suit, investigation or proceeding against, involving, affecting or relating to them or against, involving, affecting or relating to any of them or their officers or directors in connection with the business and affairs of IAI.
7.9.7 To the best knowledge of such counsel, there is no default (or event which, with notice or lapse of time or both, would constitute a default) by any party thereto under any contract or by IAI under any governmental license, franchise, permit or other governmental authorization, which defaults and events would, in the aggregate, have a material adverse effect with respect to the condition (financial or otherwise), assets, properties, business or prospects of IAI, or a breach of any provision of the Articles of Incorporation, bylaws or other charter documents IAI.
7.9.8 This Agreement and the transactions contemplated herein have been duly authorized for quotation on approved by the Nasdaq SmallCap MarketBoard of Directors and by the Shareholders of IAI at a meeting duly held (or by written consent in lieu of a meeting) in compliance with the California General Corporation Law and the applicable regulations thereunder and is binding as to all Shareholders and this Agreement has been duly and validly executed and delivered by IAI; no holders of outstanding shares of capital stock and the consummation of the Company are entitled as such to any preemptive or other rights to subscribe for any of Merger in accordance with the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each terms of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of IAI; and upon the Company except filing by of this Agreement or Articles of Merger, executed, acknowledged and amended as such enforceability may be limited required by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity andCalifornia General Corporation Law, with respect to this Agreementthe Secretary of State of California, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities lawsthe Merger shall become effective.
(f) The Underwriter's Warrants will conform 7.9.9 Nothing has come to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms attention of such counsel to indicate that any of the agreement representing the Underwriter's Warrants, will constitute legal, valid material representations and binding obligations warranties of IAI or any of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise Shareholders contained in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings this Agreement are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result untrue in any material adverse change respect or misleading in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3respect.
Appears in 1 contract
Opinion of Counsel. The Representative shall have received an opinion, dated the Firm Closing Date, of Xxxxxx & Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, and from the Company's Federal Communications Commission counsel, substantially to the effect that:
(a) the Company has and each of its subsidiaries have been duly organized and is are validly existing as a corporation corporations in good standing under the laws of the State of CaliforniaColorado, and duly qualified to transact business as a foreign corporation and is are in good standing under the laws of all other jurisdictions where the ownership or leasing of its their properties or the conduct of its their business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
(b) the Company and each of its subsidiaries has the corporate power to own or lease its their properties; to conduct its their business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by itthem;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in effective upon the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock Closing all of the Company; 's all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares Common Stock and Warrants have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company Common Stock and Warrants have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the SharesUnits; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as rights to indemnity and contribution thereunder may be limited by applicable federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities lawsequity.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Underwriting Agreement (New Frontier Media Inc /Co/)
Opinion of Counsel. The Representative FBR shall have received an opinionat the Closing the written opinion of counsel to Vitrix, dated the Firm Closing Dateaddressed to FBR, of Xxxxxin form and substance, X'Xxxxxreasonably satisfactory to FBR and its counsel, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been duly organized and Vitrix is a corporation validly existing as a corporation and in good standing under the laws of the State of CaliforniaArizona, with all requisite corporate power and duly qualified authority to transact own its properties and to carry on the business as a foreign corporation in which it is now engaged and is in good standing under as a foreign corporation in the laws jurisdictions in which the real or personal property owned or leased or business conducted by Vitrix is material to the operations of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have Vitrix taken as a material adverse effect on the Company;whole.
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an The authorized capital stock as set forth under of Vitrix consists of 10,000,000 shares of common stock, without par value. Of the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectusauthorized capital stock, there are no outstanding optionsoutstanding: 9,314,444 shares of common stock, warrantswithout par value, or other rights calling options for the issuance ofpurchase of 759,000 additional shares of common stock and warrants for the purchase of 312,000 additional shares of common stock. Except as otherwise stated, and there is no commitment, plan or arrangement to issue issue, and no outstanding option, warrant or registerother right calling for the issuance of, any share of Vitrix capital stock, or any security or other instrument convertible into, exercisable for, or exchangeable for capital stock of the CompanyVitrix; all of the shares of and there is no outstanding security or other instrument convertible into or exchangeable for capital stock of the Company have been Vitrix. Each outstanding share of Vitrix capital stock is duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Companyauthorized, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; non-assessable, has not been issued and is not owned or held in violation of any preemptive right of stockholders, and is owned of record and by the shares Shareholders in accordance with the table shown on Schedule 5.2 attached hereto.
(c) All necessary corporate proceedings of capital stock of the Company Vitrix have been duly authorized for quotation on taken to authorize the Nasdaq SmallCap Market; no holders execution, delivery, and performance of outstanding shares of capital stock this Agreement by Vitrix and the consummation of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;transactions contemplated by this Agreement.
(d) Vitrix has corporate power and authority to execute, deliver, and perform this Agreement, the capital stock of respective Shareholders have the Company conformspower and authority to execute, as to legal mattersdeliver, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of perform this Agreement, and this Agreement and the agreement representing the Underwriter's Warrants have has been duly authorized authorized, executed, and delivered by all necessary corporate action of Vitrix, has been duly executed and delivered by the Company and each of this Agreement and Shareholders, constitutes the agreement representing the Underwriter's Warrants is a valid legal, valid, and binding obligation of Vitrix and the Company except as such enforceability may be limited by Shareholders, and, (subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws affecting the enforceability of creditors' rights generally generally, and subject to general principles the discretion of equity andthe court in granting equitable remedies) is enforceable as to Vitrix and the Shareholders in accordance with its terms.
(e) The execution, with respect to delivery, and performance of this Agreement, except as rights to indemnify and contribution hereunder may be limited Agreement by applicable federal Vitrix will not violate or state securities result in a breach of any term of Vitrix's certificate of incorporation (or other charter document) or of its by-laws.
(f) The Underwriter's Warrants will conform After reasonable investigation, such counsel has no actual knowledge of any consent of, or declaration or filing with, any governmental authority which is required of Vitrix or any Shareholder for the execution, delivery, or performance of this Agreement by Vitrix or any Shareholder, to the description thereof in extent material to this Agreement or the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rightstransaction contemplated hereby.
(g) After reasonable investigation such counsel has no legal actual knowledge of any action, suit, or governmental proceedings are proceeding pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement threatened against Vitrix or the Prospectus and are not described therein, andany Shareholder, to the best knowledge of such counselextent material to this Agreement or the transaction contemplated hereby, no such proceedings have been threatened against the Company at law or with respect to in equity, or before any of its properties that can federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality that:
(i) Can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material materially adverse change in the business, properties, operations, prospects, or assets, or in the condition, financial condition or results otherwise, of operations Vitrix taken as a whole, or
(ii) Seeks to prohibit or otherwise challenge the consummation of the Company;transactions contemplated by this Agreement, or to obtain substantial damages with respect thereto, except as disclosed in this Agreement.
(h) no contract or other document is required to be described in The offer, sale, and delivery of the Registration Statement or shares of Vitrix Common Stock under the Prospectus or to be filed as an exhibit to circumstances contemplated by this Agreement constitute exempted transactions under the Registration Statement that Securities Act of 1933, and registration of those shares under the Securities Act of 1933 is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or required in connection with any governmental authorityoffer, except such as have been obtained and such as may be required under state securities or blue sky lawssale, or conflict with or result in a breach or violation delivery of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3those shares.
Appears in 1 contract
Opinion of Counsel. The On the Closing Date, the Representative shall have received an opinionthe favorable opinion of Pxxxxx Bxxxx LLP (“Pxxxxx Bxxxx”), counsel to the Company, dated as of the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for addressed to the Company, substantially Representative and in form and substance satisfactory to the Representative to the effect that:
(ai) the The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the its state of incorporation. The Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of its any properties or the conduct character of its business operations requires such qualification, except where the failure to be so qualified qualify would not have a material adverse effect on the Company;.
(bii) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement All issued and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock securities of the Company have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable; the Shares holders thereof are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Certificate of Incorporation or Bylaws of the Company. The authorized and outstanding capital stock of the Company is as set forth in the Statutory Prospectus and the Prospectus.
(iii) The Securities have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreementfor, will be validly issued, fully paid and nonassessablenon-assessable; the shares holders thereof are not and will not be subject to personal liability by reason of capital stock being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company have been duly authorized for quotation on arising by operation of law or under the Nasdaq SmallCap Market; no holders Certificate of outstanding shares Incorporation or Bylaws of capital stock the Company. When issued, the Representative’s Purchase Option, the Representative’s Warrants and the Warrants will constitute valid and binding obligations of the Company are entitled as such to any preemptive or other rights to subscribe for any of issue and sell, upon exercise thereof and payment therefor, the Shares; number and no holders type of securities of the Company called for thereby and such Warrants, the Representative’s Purchase Option, and the Representative’s Warrants, when issued, in each case, are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of enforceable against the Company conformsin accordance with their respective terms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
except: (ea) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws affecting the creditors’ rights generally; (b) as enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and any indemnification or contribution hereunder provision may be limited by applicable under the federal or and state securities laws; and
(c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Common Stock comply in all respects with the requirements of Delaware law.
(fiv) The Underwriter's Warrants will conform to This Agreement, the description thereof in Warrant Agreement, the Registration Statement Services Agreement, the Trust Agreement, the Escrow Agreement and the ProspectusUnit Placement Agreement have each been duly and validly authorized and, when executed and delivered by the Company, constitute, and the Representative’s Purchase Option has been duly and validly authorized by the Company and, when issued executed and paid for in accordance with the terms of the agreement representing the Underwriter's Warrantsdelivered, will constitute legalconstitute, the valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of Company, enforceable against the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (b) as enforceability of any indemnification or contribution provisions may be limited under the terms federal and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the agreement representing the Underwriter's Warrants at the price therein provided, will court before which any proceeding therefor may be duly and validly issued, fully paid and non- assessable and free of preemptive rightsbrought.
(gv) no legal or governmental proceedings are pending to which The execution, delivery and performance of this Agreement, the Company is a party or to which Warrant Agreement, the property of Representative’s Purchase Option, the Company is subject that are required to be described in Escrow Agreement, the Registration Statement or Trust Agreement, the Prospectus Services Agreement and are not described thereinthe Unit Placement Agreement, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering issuance and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this AgreementSecurities, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the other terms and provisions of this Agreement hereof and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated thereof, do not require and will not, with or without the consent, approval, authorization, registration giving of notice or qualification the lapse of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky lawstime, or both, (a) to such counsel’s knowledge, conflict with with, or result in a breach or violation of of, any of the terms and or provisions of, or constitute a default under, or result in the creation or modification of any indenturelien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any mortgage, deed of trust, lease note, indenture, loan, contract, commitment or other agreement or instrumentinstrument filed as an exhibit to the Registration Statement, known to such counsel, to which (b) result in any violation of the Company is a party or by which provisions of the Company or any of its properties are bound, or the Articles Certificate of Incorporation or Bylaws the By-Laws of the Company, or (c) to such counsel’s knowledge, violate any statute or any judgment, order or decree, order, rule or regulation applicable to the Company of any court court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental authority or any arbitrator known to such counsel and applicable to body having jurisdiction over the Company;, its properties or assets.
(jvi) The Registration Statement, the Registration Statement is effective under the Act, any required filing of the Statutory Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment any post-effective amendments or supplement supplements thereto (in each case, other than the financial statements and other financial and statistical information contained included therein, as to which such counsel no opinion need express no opinionbe rendered) comply each as of their respective dates complied as to form in all material respects with the applicable requirements of the Act and the Rules Regulations. The Securities and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered each agreement filed as an investment Company within exhibit to the meaning of Registration Statement conform in all material respects to the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that description thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus. The statements set forth in the Registration Statement, the Statutory Prospectus and the Prospectus under the captions “Risk Factors,” “Comparison to offerings of blank check companies,” and “Description of Securities,” insofar as they purport to describe the provisions of laws, are accurate and fairly summarize such provisions. Upon delivery and payment for the Firm Units on the Closing Date, the Company will not be subject to Rule 419 under the Act and none of the Company’s outstanding securities will be deemed to be a “pxxxx stock” as defined in Rule 3a-51-1 under the Exchange Act.
(vii) Counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus, the Statutory Prospectus and the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Statutory Prospectus and the Prospectus (except as otherwise set forth in this opinion), such counsel has no knowledge of any facts which lead them to believe that either (i) the Registration Statement at the time it became effective under the Act and as of its effective datethe Closing Date or Option Closing Date, as the case may be, contained any or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading misleading; or that (ii) the ProspectusStatutory Prospectus at the Time of Sale and as of the Closing Date and the Option Closing Date, as the case may be, and the Prospectus or any amendment or supplement thereto, as of its date or the date it was filed and as of such opinionthe Closing Date and as of the Option Closing Date, included or includes as the case may be, contained any 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 therein, in light of the circumstances under which they were made, not misleading; provided misleading (it being understood that in each case such counsel need not express any no opinion as with respect to the financial statements and schedules and other financial and statistical information contained thereindata included in the Registration Statement, Statutory Prospectus or Prospectus).
(viii) The Registration Statement is effective under the Act. In rendering any To such opinioncounsel’s knowledge, such counsel may rely as to matters no stop order suspending the effectiveness of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Prospectus Act or applicable state securities laws.
(ix) To such counsel’s knowledge, there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened in writing against the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Company.
Appears in 1 contract
Opinion of Counsel. The Representative SONTECH shall have received delivered to WAC an opinionopinion of SONTECH's counsel in the form of Exhibit "E", dated the Firm Closing DateEffective Time, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(ai) the Company has been SONTECH is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the CompanyNevada;
(bii) the Company SONTECH has the corporate power to own carry on its respective businesses as they are now being or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by ithave been conducted;
(ciii) the Company This Agreement has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Companyauthorized, and, when issued executed and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessableby SONTECH; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants it is a valid and binding obligation of SONTECH, enforceable in accordance with its terms, except to the Company except as such enforceability may be extent that enforcement is limited by applicable bankruptcy, reorganization, insolvency, reorganizationmoratorium, moratorium or similar laws affecting the enforceability of creditors' rights and remedies generally or by general equity principles (and subject to general principles of equity and, with respect to this Agreement, except excepting specific performance as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Companyremedy);
(hiv) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as requiredSONTECH has taken all corporate action necessary for its due performance under this Agreement;
(iv) the issuance, offering The execution and sale of the Shares and the Underwriter's Warrant delivery by the Company pursuant to this Agreement, the compliance by the Company with the other provisions SONTECH of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do hereby will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, SONTECH's Certificate of Incorporation or Bylaws; neither will such actions, to the best of such counsel's knowledge after inquiry and based upon information provided by SONTECH, constitute a default underor give rise to a rights of termination, acceleration, or cancellation under any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company SONTECH or any of its properties are bound. Execution and delivery will not violate any court order, writ, or the Articles decree of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and injunction applicable to the CompanySONTECH;
(jvi) the Registration Statement is effective under the ActCounsel does not know, after inquiry, of any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement actions, suits, or any amendment thereto has been issued by the Commissionother legal proceedings or investigations pending, and no proceedings for that purpose have been instituted orthreatened against, to the knowledge of such counselrelating to, are threatened or contemplated by the Commissionmaterially adversely affecting SONTECH;
(kvii) The authorized and, to such counsel's best knowledge after inquiry, outstanding capitalization of SONTECH is as set forth in Section 5.03(j); all of the Registration Statement outstanding shares of SONTECH's capital stock are validly issued, fully-paid, and non-assessable, without preemptive rights. To the Prospectus and each amendment best of counsel's knowledge after inquiry, there are no outstanding subscriptions, options, rights, warrants, or supplement thereto other transfer agreements (in each casewhether oral or written), other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion set forth in Section 7.33.02(j) of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Sontech Inc)
Opinion of Counsel. The Representative Hanover shall have received an opinionthe opinion of Kramer, Levin, Naftalis, Nessen, Xxxxx & Xxxxxxx as counsel for MFG, dated as of the Firm Closing DateDate of the Closing, of Xxxxxaddressed to and in form and substance satisfactory to Hanover, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
: (ai) the Company has been MFG is a business trust duly organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of CaliforniaMassachusetts, and each MFG Portfolio is a validly existing series of shares of such business trust; (ii) MFG is an open-end investment company of the management type registered under the Act; (iii) this Agreement and the Reorganization provided for herein and the execution of this Agreement have been duly qualified to transact business as a foreign corporation authorized and approved by all requisite action of MFG and this Agreement has been duly executed and delivered by MFG and is a valid and binding obligation of MFG enforceable against MFG in accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good standing faith and fair dealing; (iv) the Registration Statement has been declared effective under the laws Securities Act and to the best of all such counsel's knowledge after reasonable investigation no stop order has been issued or threatened suspending its effectiveness; (v) to the best of such counsel's knowledge, no consent, approval, order or other jurisdictions where the ownership authorization of any federal or leasing of New York state or Massachusetts state court or administrative or regulatory agency is required for MFG to enter into this Agreement or carry out its properties or the conduct of its business requires such qualificationterms that has not already been obtained, except other than where the failure to be so qualified obtain any such consent, approval, order or authorization would not have a material adverse effect on the Company;
operations of MFG; (bvi) to the Company has best of such counsel's knowledge, MFG is not in breach or violation of any material contract listed on Schedule II hereto to which it is a party, which breach or violation would (a) affect the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; ability of MFG to enter into this Agreement or consummate the transactions contemplated hereby, including the Reorganization, or (b) have a material adverse effect on the business or financial condition of MFG; (vii) to the best of such counsel's knowledge, no federal or New York state or Massachusetts state administrative or regulatory proceeding is pending or threatened against MFG which would (i) affect the ability of MFG to enter into this Agreement or consummate the transactions contemplated hereby, including the Reorganization, or (b) have a material adverse effect on the business or financial condition of MFG; and to carry out all of (viii) the terms and provisions hereof MFG Portfolio Shares to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" issued in the Prospectus; other than as disclosed in the Registration Statement and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company Reorganization have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to upon issuance thereof in accordance with this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of In rendering such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements thereinKramer, in light of the circumstances under which they were madeLevin, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. In rendering any such opinionNaftalis, such counsel Nessen, Xxxxx & Xxxxxxx may rely on the opinion of Massachusetts counsel as to matters of fact, relating to the extent such counsel deems proper, Massachusetts law and on certificates of responsible officers and/or trustees of the Company and public officials. The foregoing opinion may be limited MFG as to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3factual matters.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Liquidation (Mutual Fund Group)
Opinion of Counsel. The Representative Buyer shall have received an opinionopinion of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxx PLLC, counsel to the Shareholders and the Companies, dated the Firm Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the CompanyDate and in form and substance satisfactory to Buyer, substantially to the effect that:
: (a) each of the Company has been Companies is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of California, and duly qualified to transact business as a foreign corporation and is in good standing under the laws of all other jurisdictions where the ownership or leasing jurisdiction of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company;
incorporation; (b) the authorized capital stock of each of the Companies consists of the number of authorized shares with the par value and the number of outstanding shares as set forth with respect thereto in Schedule 2.3 hereof; to counsel's knowledge (subject to compliance with applicable federal and state securities laws), all of such shares are validly issued, fully paid and nonassessable and were not issued in violation of any preemptive rights of any shareholder of any of the Companies; such shares are owned of record as set forth in Schedules 1.1 and 2.3 and such counsel has no knowledge of any outstanding securities convertible into, exchangeable for or carrying the right to acquire capital stock of the Companies, or any subscriptions, warrants, options, rights or other arrangements or commitments obligating any Company to issue or dispose of any capital stock or any ownership therein; (c) upon endorsement by the Shareholders of the Company Shares and delivery of the certificates representing the Company Shares in accordance with the terms of this Agreement, Buyer will be vested with good and marketable title to the Company Shares of each of the Companies, free and clear of any adverse claim; (d) the execution and delivery of this Agreement and all other agreements and documents contemplated hereby by the Companies and the Shareholders and the performance by the Companies and the Shareholders of their respective obligations under this Agreement and such other agreements and documents do not constitute a violation of or a default under the Companies' Charter Documents or any agreements, arrangements, commitments, orders, judgments or decrees to which any of the Companies is a party or by which it or its respective assets are bound of which such counsel has knowledge; (e) each of the Companies has the corporate power and authority to own or lease execute, deliver and perform its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into obligations under this Agreement and the other agreements and documents contemplated hereby (to carry out all which each is a party); (f) the execution and delivery of this Agreement and the other agreements and documents by each of the terms Companies and provisions hereof to be carried out the performance by it;
(c) the such Company has an authorized capital stock as set forth of its obligations hereunder and under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed in the Registration Statement agreements and the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares documents have been duly authorized by all necessary requisite corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Marketpart of such Company; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(dg) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the each other agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants document contemplated hereby is a valid and binding obligation of the Company Companies and the Shareholders, respectively, enforceable against each of the Companies and each of the Shareholders (to the extent each is a party) in accordance with their respective terms, except as that (i) such enforceability enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally generally, (ii) the remedy of specific performance and injunctive relief are subject to general principles certain equitable defenses and to the discretion of equity andthe court before which any proceedings may be brought, and (iii) rights to indemnification hereunder may be limited under applicable securities laws; (h) to such counsel's knowledge, there are no actions, suits or proceedings pending or threatened that are required by the terms of Section 2.16 to be described in Schedule 2.16 that are not described therein; and (i) no consent, approval, authorization or other action by, or filing with, any governmental authority, regulatory body or other person is required to be obtained by the Companies or the Shareholders in connection with respect to the execution, delivery or performance by them of their respective obligations under this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations of the Company;
(h) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the agreement representing the Underwriter's Warrants and the consummation of the other transactions herein and therein contemplated do not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been duly obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company;
(j) the Registration Statement is effective under the Act, any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, are threatened or contemplated by the Commission;
(k) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) such counsel shall also state that they have no reason to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fyi Inc)
Opinion of Counsel. The Representative Investor shall have received receive an opinion, dated opinion letter from counsel to the Firm Company (updated where applicable) prior to each Closing Date, of Xxxxx, X'Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, Los Angeles, California counsel for the Company, substantially to the effect that:
(a) the Company has been duly organized is incorporated and is validly existing as a corporation in good standing under the laws jurisdiction of the State of California, and its incorporation. The Company and/or its subsidiaries are duly qualified to transact do business as a foreign corporation and is in good standing under in all jurisdictions where, to such counsel's knowledge, the laws of all other jurisdictions where the ownership Company and/or its subsidiaries owns or leasing of its properties leases properties, maintains employees or the conduct of its business requires such qualificationconducts business, except where for jurisdictions in which the failure to be so qualified qualify would not have a material adverse effect Material Adverse Effect on the Company, and has all requisite corporate power and authority to own its properties and conduct its business;
(b) the Company has the corporate power to own or lease its properties; to conduct its business as described in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all of the terms and provisions hereof to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as such counsel's knowledge, except for matters disclosed in the Registration Statement and the ProspectusSEC Documents, there are is no outstanding optionsaction, warrantsproceeding or investigation pending, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Shares have been duly authorized by all necessary corporate action of the Company, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Stock of the Company issuable upon exercise of the Underwriter's Warrants have been duly and validly authorized and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise in accordance with the terms of the agreement representing the Underwriter's Warrants at the price therein provided, will be duly and validly issued, fully paid and non- assessable and free of preemptive rights.
(g) no legal or governmental proceedings are pending to which the Company is a party or to which the property of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected towhich might result, or, if determined adversely to the Company, would, in any individual case either individually or in the aggregate, result in any material adverse change in the business, prospects, business or financial condition or results of operations of the Company;
(hc) no contract or other document is required to be described such counsel's knowledge, except for matters disclosed in the Registration Statement SEC Documents, the Company is not a party to or the Prospectus or to be filed as an exhibit subject to the Registration Statement that is not described therein provisions of any order, writ, injunction, judgment or filed as requireddecree of any court or government agency or instrumentality;
(id) the issuance, offering and sale shares of Common Stock issuable upon the conversion of the Shares Debentures have been duly authorized and upon issuance will be validly issued under the Underwriterlaws of the Company's Warrant by the Company pursuant to state of incorporation;
(e) this Agreement, the compliance by issuance of the Company with the other provisions of this Agreement Debentures hereunder, and the agreement representing the Underwriter's Warrants and the consummation shares of Common Stock issuable upon conversion of the other transactions herein and therein contemplated do not require the consentDebentures, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained duly approved by all required corporate action and that all such as may shares of Common Stock, upon execution and delivery shall be required under state securities or blue sky lawsvalidly issued and outstanding, or conflict with or result in a breach or violation of any of the terms fully paid and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to such counsel, to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Companynonassessable;
(jf) the Registration Statement is effective under the Act, any required filing issuance of the Prospectus pursuant to Rule 424(b) has been made in Debentures and the manner shares of Common Stock issuable upon conversion thereof, do not violate the applicable listing agreement between the Company and within any securities exchange or market on which the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, Company's securities are threatened or contemplated by the Commissionlisted;
(kg) the Registration Statement and the Prospectus and each amendment or supplement thereto (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements authorized capital stock of the Act Company consists of 50,000,000 shares of Common Stock, $0.0001 par value per share, and the Rules and Regulations;
(l) the Company is not required, and, if the Company uses the proceeds 10,000,000 shares of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amendedpreferred stock; and
(mh) such counsel shall also state that they have no reason the Common Stock is registered pursuant to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light Section 12(g) of the circumstances under which they were made, not misleading; provided that in each case such counsel need not express any opinion as to the financial statements and other financial and statistical information contained therein. 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. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3Exchange Act.
Appears in 1 contract
Opinion of Counsel. The Representative Company (which term shall include any subsidiaries of the Company) shall have received an furnished to the Representative the opinion, dated the Firm Closing Date, of Xxxxxaddressed to the Representative, X'Xxxxxfrom Atlas, Xxxxxxxx Pearlman, Trop & Xxxxxxxx LLPBorkson, Los Angeles, California counsel for the counxxx xx xhe Company, substantially to the effect thatthat based upon a review by them of the Registration Statement, Prospectus, the Company's certificate of incorporation, bylaws, and relevant corporate proceedings, an examination of such statutes they deem necessary and such other investigation by such counsel as they deem necessary to express such opinion:
(ai) the The Company has been duly organized incorporated and is a validly existing as a corporation in good standing under the laws of Florida, with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the State of California, Registration Statement and Prospectus.
(ii) The Company is duly qualified to transact business or registered as a foreign corporation in any applicable state or foreign jurisdiction cognizant that the Company's ownership of property and is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where qualification or registration and that the failure to be so qualified qualify would not have a material adverse effect on the Company;its operations.
(biii) the The Company has the corporate power to own or lease its properties; to conduct its business authorized an outstanding capital stock as described set forth in the Registration Statement and the Prospectus; to enter into this Agreement and to carry out all the outstanding common stock of the terms Company, the Stock, and provisions hereof the Warrants conform to be carried out by it;
(c) the Company has an authorized capital stock as set forth under the heading "CAPITALIZATION" in the Prospectus; other than as disclosed statements concerning them in the Registration Statement and Prospectus; the Prospectus, there are no outstanding options, warrants, or other rights calling for the issuance of, and no commitment, plan or arrangement to issue or register, any share of capital stock of the Company; all of the shares of capital common stock of the Company have has been duly authorized and validly issued and are fully is fully-paid and nonassessablenonassessable and contains no preemptive rights; the Shares have been duly authorized by all necessary corporate action of the CompanyStock has been, and, when issued and delivered to and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the shares of capital stock of the Company have been duly authorized for quotation on the Nasdaq SmallCap Market; no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares; and no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(d) the capital stock of the Company conforms, as to legal matters, to the statements set forth under the heading "DESCRIPTION OF SECURITIES" in the Prospectus in all material respects;
(e) the execution and delivery of each of this Agreement and the agreement representing the Underwriter's Warrants have been duly authorized by all necessary corporate action of the Company and each of this Agreement and the agreement representing the Underwriter's Warrants is a valid and binding obligation of the Company except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and subject to general principles of equity and, with respect to this Agreement, except as rights to indemnify and contribution hereunder may be limited by applicable federal or state securities laws.
(f) The Underwriter's Warrants will conform to the description thereof in the Registration Statement and the Prospectus, and when issued and paid for in accordance with the terms of the agreement representing the Underwriter's Warrants, will constitute legal, valid and binding obligations of the Company entitled to the rights and benefits of such agreement. The shares of Common Warrant Stock of the Company issuable upon exercise of the Underwriter's Warrants have been will be, duly and validly authorized and, upon issuance thereof and reserved for issuance upon exercise of the Underwriter's Warrants and when issued upon such exercise payment therefor in accordance with this Agreement and the terms of the agreement representing the Underwriter's Warrants at the price therein providedWarrants, will be duly and validly issued, fully paid and non- assessable nonassessable, and free will not be subject to the preemptive rights of preemptive rightsany shareholder of the Company.
(giv) no legal or governmental proceedings The Warrants and Representative's Warrants have been duly and validly authorized and issued and are pending to which the Company is a party or to which the property valid and binding instruments enforceable in accordance with their terms.
(v) A sufficient number of shares of Stock and Warrants have been duly reserved for issuance upon exercise of the Company is subject that Warrants and the Representative's Warrants.
(vi) No consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are required known to be described in such counsel which are necessary for the Registration Statement valid authorization, issue or the Prospectus and are not described therein, and, to the best knowledge of such counsel, no such proceedings have been threatened against the Company or with respect to any of its properties that can reasonably be expected to, or, if determined adversely to the Company, would, in any individual case or in the aggregate, result in any material adverse change in the business, prospects, financial condition or results of operations sale of the Company;Stock and Warrants hereunder, except as required under the Act or blue sky or state securities laws.
(hvii) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(i) the issuance, offering The issuance and sale of the Shares and the Underwriter's Warrant by the Company pursuant to this AgreementStock, the compliance by the Company with the other provisions of this Agreement and the agreement representing the UnderwriterWarrants, Representative's Warrants and the consummation of the other transactions herein contemplated and therein contemplated do compliance with the terms of this Agreement will not require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or conflict with or result in a breach or violation of any of the terms and terms, conditions, or provisions of, of or constitute a default underunder the certificate of incorporation, or bylaws of the Company, or any note, indenture, mortgage, deed of trust, lease or other agreement or instrument, instrument known to such counsel, counsel to which the Company is a party or by which the Company or any of its properties are bound, or the Articles of Incorporation or Bylaws of the Company, property is bound or any statute existing law (provided this paragraph shall not relate to federal or any judgment, decreestate securities laws), order, rule rule, regulation, writ, injunction, or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and applicable to of any government, governmental instrumentality, agency, body, arbitration tribunal, or court domestic or foreign, having jurisdiction over the Company;Company or its property.
(jviii) the The Registration Statement is has become effective under the ActAct and, any required filing to the best of the Prospectus pursuant to Rule 424(b) knowledge of such counsel after such counsel has been made in the manner and within the time period required by Rule 424(b); and conducted a reasonable investigation, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of such counsel, or are threatened pending or contemplated by the Commission;
(k) Commission under the Act; and the Registration Statement and the Prospectus Prospectus, and each amendment or and supplement thereto (in each casethereto, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations;
(l) the Company is not requiredRegulations thereunder, and, if the Company uses the proceeds of the sale of the Firm Shares and the Option Shares solely as described in the Prospectus, will not be required as after a result of the sale of such Shares to be registered as an investment Company within the meaning of the Investment Company Act of 1940, as amended; and
(m) reasonable investigation such counsel shall also state that they have has no reason to believe that either the Registration Statement, as of its effective date, contained Statement or the Prospectus or any such amendment or supplement contains any untrue statement of a material fact or omitted omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingmade (except that no opinion need be expressed as to financial statements contained in the Registration Statement or Prospectus); provided that in each case and such counsel need is familiar with all contracts referred to in the Registration Statement or Prospectus and such contracts are sufficiently summarized or disclosed therein or filed as exhibits thereto as required, and such counsel, after a reasonable investigation, does not express know of any opinion contracts required to be summarized or disclosed or filed, and such counsel, after a reasonable investigation, does not know of any legal or governmental proceedings pending or threatened to which the Company is the subject of such a character required to be disclosed in the Registration Statement or the Prospectus which are not disclosed and properly described therein.
(ix) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company. As to routine factual matters such as to the financial statements issuance of stock certificates and other financial receipt of payment therefor, the states in which the Company transacts business, the adoption of resolutions reflected by the Company's minute book and statistical information contained therein. In rendering any such opinionthe like, such counsel may rely as to on the certificate of an appropriate officer of the Company. Such opinion shall also cover such other matters of fact, incident to the extent such counsel deems proper, on certificates of responsible officers of transactions contemplated by this Agreement as the Company and public officials. The foregoing opinion may be limited to the laws of the United States, the laws of the State of California and the General Corporation Law of the State of California. References to the Registration Statement and the Prospectus in the Section 7.2 Underwriter or their Counsel shall include any amendment or supplement thereto at the date of such opinion. Such counsel shall permit Xxxxxxx, Mesereau & Leids LLP to rely upon such opinion in rendering its opinion in Section 7.3reasonably request.
Appears in 1 contract
